Ondirsek et al v. Hoffman

Filing 322

ORDER granting 315 Motion to Enforce; granting 316 Motion to Supplement Motion to Enforce. The Court directs the U.S. Marshal's Office to immediately advertise and sell the properties at 4301 Windsor Drive, Fort Smith, Sebastian County, Arkansas and 4401 Windsor Drive, Fort Smith, Sebastian County, Arkansas. Signed by Honorable Barry A. Bryant on March 6, 2014. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
SPENCER ONDRISEK and
SETH CALAGNA
vs.

PLAINTIFFS

Civil No. 4:08-cv-04113

BERNIE LAZAR HOFFMAN a/k/a
TONY ALAMO

DEFENDANT

ORDER
Before the Court are Plaintiffs’ Motion to Enforce Order to Sell Properties and Plaintiffs’
Supplemental Motion. ECF Nos. 315-316. With these Motions, Plaintiffs seek to invalidate
recently-filed mechanics’ liens against two of the properties subject to the Writ of Execution (ECF
No. 101). These two properties are 4301 Windsor Drive, Fort Smith, Sebastian County, Arkansas
and 4401 Windsor Drive, Fort Smith, Sebastian County, Arkansas. ECF No. 315.
The Court heard testimony related to these mechanics’ liens during a hearing in Texarkana,
Arkansas on February 5, 2014. ECF No. 321. All of the individuals who filed these liens were
present at this hearing and testified during this hearing. Id. Considering this testimony and upon
review of these liens, the Court now enters the following Order.
1.

Background:
The liens in question were filed by five individuals: Al Johnson, Jay Porter, Jon Curry, Greg

Seago, and Zecheriah Edwards. ECF No. 316-1. These liens were filed in December of 2013 for
alleged work performed at the properties at 4301 Windsor Drive, Fort Smith, Sebastian County,
Arkansas and 4401 Windsor Drive, Fort Smith, Sebastian County, Arkansas. Id.
For instance, one lien was filed in the amount of $115,616.00 for “security, daily property
and building maintenance . . . general building repairs.” ECF No. 316-1 at 2. In addition to these

liens, the alleged lienholders also filed purported invoices, a “Notice of Intent to Lien,” and other
supporting documentation. Id. at 5-8.
2.

Applicable Law:
The statutes for mechanics’ and materialmen’s liens are included in Arkansas Code

Annotated § 18-44-101 through § 18-44-135. Under these provisions, a “contractor, subcontractor,
or material supplier” who “by virtue of a contract with the owner, proprietor, contractor, or
subcontractor, or agent thereof” could be entitled to a lien on the land “upon which the improvement
is situated.” ARK. CODE ANN. § 18-44-101(a).
3.

Discussion:
Upon review, consistent with the following, the Court finds these purported mechanics’ liens

are invalid. Under Arkansas Code Annotated § 18-44-101(a), these liens arise “by virtue of a
contract.” The purported lienholders are Al Johnson, Jay Porter, Jon Curry, Greg Seago, and
Zecheriah Edwards. ECF No. 316-1. Each of these individuals testified at a hearing the Court held
on February 5, 2014. ECF No. 321. During this hearing, none of these five individuals testified they
entered into a contract to be compensated for the services they provided. Without evidence of a
contract, these individuals have no enforceable mechanics’ liens.
Specifically, Al Johnson testified he has no formal agreement, and he worked “for the Lord.”
ECF No. 321 at 21-22. He testified he has contributed his time and labor, and in return, he was
“entitled to benefits in the ministry.” Id. He also testified he does not have any type of business
where he submits “invoices to people,” and he has not operated any such business in “probably six
years.” Id. Jay Porter testified he contributed his time and labor and, in return, he expected
“ownership of whatever properties exists [exist] at the time in the ministry.” Id. at 104-108. Mr.
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Porter did not testify or even indicate he was operating under a contract when contributing this time
and labor. Id.
Jon Curry testified he had entered into no contract for his services. ECF No. 321 at 134 (“Q:
Okay. And you didn’t have any contract with anyone who is connected with the church, separate and
apart from your original understanding and that is, I’m going to do what I can to help, and the church
is going to help me back. A: That’s correct.”). Greg Seago testified he had entered into an oral
contract, but it was not for “a specific amount.” Id. at 119. Assuming Mr. Seago is credible and he
had entered into an oral contract, if it was not for “a specific amount,” that contract is not
enforceable. See Phipps v. Storey, 269 Ark. 886, 890, 601 S.W.2d 249, 252, (Ark. Ct. App. 1980)
(holding “[i]n order to be enforceable a contract must be definite and certain in all of its terms and
conditions in order that the court may know what the parties have agreed upon”). Thus, the Court
finds Mr. Seago entered into no enforceable contract.
Finally, Zechariah Edwards testified initially that he did enter into an enforceable agreement
to be compensated for his services. ECF No. 321 at 177-178. Mr. Edwards then changed his
testimony and stated he had an “understanding” that if he provided work, he would have his needs
met. Id. Again, consistent with Phipps, even if there was such an “understanding,” such an
indefinite agreement would be unenforceable. Mr. Edwards, however, then further backtracked on
his testimony and indicated his intent in filing these mechanics’ liens was not to collect money owed
to him under a contract but was instead to block the sale ordered by the Court. Id. at 184. Indeed,
Mr. Edwards testified, “The mechanics’ lien was filed because you people are taking our property
away.” Id.
Based upon this testimony, the Court finds Al Johnson, Jay Porter, Jon Curry, Greg Seago,
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and Zecheriah Edwards have provided no evidence of an enforceable contract to justify the
imposition of their purported mechanics’ liens. Thus, the Court finds these liens are invalid.
4.

Conclusion:
Consistent with this foregoing, the Court finds these mechanics’ liens are invalid and directs

the U.S. Marshal’s Office to immediately advertise and sell the properties at 4301 Windsor Drive,
Fort Smith, Sebastian County, Arkansas and 4401 Windsor Drive, Fort Smith, Sebastian County,
Arkansas in accordance with Ark. Code Ann. §§ 16-66-401 to 16-66-507.
ENTERED this 6th day of March 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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