Billingsley v. Planit Dirt Excavation & Concrete, Inc.

399 S.W.3d 729, 2012 Ark. App. 266, 2012 WL 1327793, 2012 Ark. App. LEXIS 368
CourtCourt of Appeals of Arkansas
DecidedApril 18, 2012
DocketNo. CA 11-1082
StatusPublished
Cited by2 cases

This text of 399 S.W.3d 729 (Billingsley v. Planit Dirt Excavation & Concrete, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billingsley v. Planit Dirt Excavation & Concrete, Inc., 399 S.W.3d 729, 2012 Ark. App. 266, 2012 WL 1327793, 2012 Ark. App. LEXIS 368 (Ark. Ct. App. 2012).

Opinion

JOHN B. ROBBINS, Judge.

|,Appellant Dan Billingsley appeals the order of the Saline County Circuit Court after a bench trial that awarded appellee Planit Dirt Excavation and Concrete, Inc.,1 damages, costs, and attorney’s fees for breach of contract. This appeal returns following our dismissal due to lack of a final order from which to appeal. Billingsley v. Planit Dirt Excavation & Concrete, Inc., and Desjoyaux Pools of Ark., Inc., 2011 Ark. App. 449, 2011 WL 2529989. All claims have been resolved with finality by the Saline County Circuit Court upon entry of an order on July 22, 2011, and appellant filed a timely notice of appeal from that order.

As stated in our prior opinion, the parties contracted for the construction of a swimming-pool project on Dan’s property. The construction halted after a verbal ^disagreement between Dan and Planit Dirt’s owner, J.R. Randleas, regarding the second of four payments being due. As a consequence, Dan ordered all personnel from Planit Dirt to leave his premises. Planit Dirt filed suit for breach of contract and conversion of property. Dan counter-sued for breach of contract. After a trial, the judge found that Dan breached the agreement by ordering Planit Dirt off his property, not paying the second installment, and refusing to allow Planit Dirt to complete the contract. Planit Dirt’s claim for conversion and Dan’s counterclaim for breach of contract were ultimately dismissed with prejudice. The judge awarded Planit Dirt $19,741 in damages, plus court costs and attorney fees, for a total judgment of $21,253.15.

Dan appeals, arguing that the trial court clearly erred by (1) not finding Planit Dirt to have breached the contract, (2) finding that Dan was required to complete his end of the contract upon Planit Dirt’s breach, and (3) using an improper measure of damages because Dan should have been refunded his out-of-pocket costs for Planit Dirt’s breach. We affirm.

On appeal from a bench trial, we review the findings of the trial court de novo, but we do not reverse unless the findings are clearly erroneous or clearly against the preponderance of the evidence. Munzer v. Kushner, 2010 Ark. App. 196, at 4-5, 375 S.W.3d 647, 649-50. 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. Id. We give due deference to the trial judge’s superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Id.

RThe first two points on appeal require us to decide if the trial court clearly erred in finding that Dan, and not Planit Dirt, breached this contract. We cannot say that the trial court clearly erred in so finding, and we are not left with a distinct and firm conviction that a mistake was committed.

Dan met J.R. at a home show in February 2008 and became interested in having J.R.’s company put a pool on his property. Dan and his wife were also building a home on that site. It is undisputed that the parties entered into a written contract on July 7, 2008, for the construction of a large and “kiddie” swimming pool in Dan’s yard for the price of $62,500 plus any add-ons. This was negotiated between Dan and Planit Dirt, operated by J.R. Rand-leas. The contract price was to be paid in four installments: a deposit of $21,875 at signing of the contract, a second payment of $21,875 “due upon delivery of pool kit,” a third payment of $12,500 “due upon completion of excavation and setting of walls,” and a final payment of $6,250 “or balance of total sale price (including add ons) due upon filter connection.”

There were no set construction deadlines in the contract. In fact, the contract provided in part that, “The Contractor [Planit Dirt] shall not be responsible for damage or delay due to inclimate [sic] weatherf.]” Further, the contract provided that, “Owner [Dan] must notify the contractor [Planit Dirt] in writing of any discrepancies or detrimental items that need attention, repaired, replaced, cleaned, removed, etc. Contractor must be given an opportunity to make amends for or repair any discrepancies or detrimental items discovered |4by owner.” The first payment was made by check, when the contract was signed at Dan’s house.

Planit Dirt placed an order for the large and kiddie pool kits on July 17, 2008. Boxes holding pool-kit parts were delivered to Dan’s property. In early September 2008, Dan’s wife was informed that the pool kit had been delivered, rendering the second payment due. Payment was not forthcoming. Construction continued, and on September 11, Dan and J.R. met at the construction site and had a heated argument over the second payment. Ultimately, Dan demanded that the construction personnel cease work and leave his property, and he summoned law enforcement to ensure their departure. J.R.’s company did not complete the job.

In a complaint filed in December 2008, Planit Dirt alleged that Dan wrongfully retained the pool kit and breached the contract, resulting in a loss of $80,000 in profit on the job. Planit Dirt sought the lost profit, punitive damages for conversion of pool goods, pre-and post-judgment interest, costs and attorney’s fees. Dan filed a general answer, denying Planit Dirt’s accusations, and a counterclaim asserting that Planit Dirt prematurely demanded the second payment before delivery of the entire pool kit. Dan asserted that J.R. physically threatened him to remit the second payment, that he incurred additional costs for the completion of the pool project by another contractor, and that Planit Dirt should pay him for breach-of-contract damages, costs, fees, and interest. Planit Dirt filed a general denial to Dan’s counterclaim.

1 ¿Discovery proceeded with depositions and requests for admission. Planit Dirt filed a motion for summary judgment but did not prevail due to numerous remaining issues of fact to be tried. The trial court ordered mediation, but the case eventually went to bench trial in March and June 2010.

Planit Dirt called Julien Bourganel to testify. Julien, a representative for Des-joyaux Pools of France, stated that his company chose J.R. to be the exclusive distributor of its pool products in the Jacksonville, Arkansas area. Julien said that his company offers quality structure and filtration systems for pools and provides its distributors with pricing lists and sample contracts for use with pool-construction customers. Julien explained that his company’s pool kit includes a filtration system with pumps and a control box, the walls and hardware, and the stairs and hardware. He was familiar with this particular project and came to assist with installation in September 2008. He said that his company supplied the pool kit, and he confirmed delivery of the whole kit to J.R. He also confirmed that J.R. was eager to get payment after delivery of the pool kit and before pouring concrete.

Julien added that he was present when J.R. met with Dan seeking payment, that he heard Dan call J.R. “boy” and warn J.R. that he (Dan) could “whip” J.R. He agreed that J.R. called Dan some foul names as well, but he believed Dan started the argument. Julien confirmed that Dan summoned the authorities to make the construction stop and that they left with whatever items remained in and on their construction vehicles.

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Related

Hartman v. Edwards
2014 Ark. App. 480 (Court of Appeals of Arkansas, 2014)
Howard v. Adams
424 S.W.3d 337 (Court of Appeals of Arkansas, 2012)

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Bluebook (online)
399 S.W.3d 729, 2012 Ark. App. 266, 2012 WL 1327793, 2012 Ark. App. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billingsley-v-planit-dirt-excavation-concrete-inc-arkctapp-2012.