J & v. REST. SUPPLY ETC. v. Supreme Fixture Co.

69 S.W.3d 881
CourtCourt of Appeals of Arkansas
DecidedMarch 6, 2002
DocketCA 01-687
StatusPublished

This text of 69 S.W.3d 881 (J & v. REST. SUPPLY ETC. v. Supreme Fixture Co.) 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
J & v. REST. SUPPLY ETC. v. Supreme Fixture Co., 69 S.W.3d 881 (Ark. Ct. App. 2002).

Opinion

69 S.W.3d 881 (2002)
76 Ark.App. 505

J & V RESTAURANT SUPPLY & REFRIGERATION, INC.,
v.
SUPREME FIXTURE COMPANY.

No. CA 01-687.

Court of Appeals of Arkansas, Division III.

March 6, 2002.

*883 Williams & Anderson, LLP, by Stephen B. Niswanger, Little Rock, for appellant.

Boswell, Tucker & Brewster, by Dennis J. Davis, Bryant, for appellee.

JOSEPHINE LINKER HART, Judge.

J & V Restaurant Supply & Refrigeration, Inc. (J & V), appeals from a judgment awarding appellee Supreme Fixture Co., Inc., an Arkansas corporation, damages in the amount of $30,638. Appellant argues that the circuit court erred by finding that it was in default and had waived its defense of lack of personal jurisdiction; in rejecting its accord and satisfaction defense; and in denying its request for an enlargement of time within which to file a motion to dismiss. We affirm.

J & V, a Montana corporation that sells and installs kitchen equipment, has never had an office in Arkansas. Supreme Fixture, an Arkansas corporation, manufactures custom-built kitchen equipment in *884 Little Rock. J & V, as subcontractor under the project's general contractor, J.E. Dunn, solicited quotes from kitchen equipment suppliers preparatory to bidding on the construction of a prison in Montana. In November 1998, J & V forwarded by facsimile a request for a quotation to Supreme Fixture. Supreme Fixture, by facsimile and mail, returned its quotation. After J & V was awarded the subcontract, using Supreme Fixture's bid, J & V sent by facsimile a purchase order totaling $31,808 to Supreme Fixture. The purchase order provided specifications for the specially designed equipment and required J & V to take delivery of the equipment in Little Rock. Between February and June, J & V made some modifications to the specifications, which necessitated Supreme Fixture's modifying its drawings and prices. In July 1999, Supreme Fixture and J & V entered into an additional agreement detailed in a new purchase order providing that J & V would pay an extra $4,000 to Supreme Fixture for delivery of the equipment to the construction location in Montana and for on-site welding services.

Originally, J & V had provided Supreme Fixture with a projected completion date of August 20. However, in mid-July, J & V informed Supreme Fixture for the first time that, unless all of the equipment was installed by July 31, they would be fined $5,000 per day after that date. In order to meet the new deadline, Supreme Fixture entered into a separate agreement with J.E. Dunn, the general contractor, to install the equipment by July 31 for an additional expediting fee of $28,000. Supreme Fixture met the new deadline and received $28,000 from J.E. Dunn. Later, Supreme Fixture learned that J.E. Dunn had subtracted that sum from its payment to J & V. Supreme Fixture then billed J & V for $35,550. In making payment, J & V subtracted $478 in other adjustments and the $28,000 paid by J.E. Dunn. J & V sent Supreme Fixture checks for $7,022 and $1,890. According to Supreme Fixture, J & V still owed $30,638 on the purchase order; however, J & V refused to pay Supreme Fixture.

Supreme Fixture sued J & V for breach of contract, and J & V's registered agent received the summons and complaint on May 22, 2000. On June 22, 2000, thirty-one days after service, J & V filed a motion for a one-day extension within which to file a motion to dismiss. J & V's attorney stated that J & V had first contacted him about filing an answer on its behalf in the early afternoon of June 21, 2000, which was the answer's due date. The attorney stated that, although he had believed that he could complete the motion to dismiss, the brief, and the accompanying affidavit in time, he was unable to do so. On June 22, J & V also filed a motion to dismiss Supreme Fixture's complaint on the ground that J & V's contacts with the state of Arkansas did not meet the constitutionally required minimum for the courts of Arkansas to assert personal jurisdiction.

At the hearing on J & V's motions, J & V's attorney stated that the clerk's office was closed when he attempted to file the motion to dismiss on June 21, having missed the filing deadline by only a few minutes. Carl Hampel, a salesman and chief estimator for Supreme Fixture, testified that Supreme Fixture is a specifications supplier for the owner of the prison and that J & V had called Supreme Fixture and asked if it could help J & V become a supplier for the project. He said that Supreme Fixture helped J & V obtain the necessary approval which qualified it to bid on the job. Supreme Fixture asked and obtained from the project's food-service consultant a set of plans for J & V. He testified that, after J & V supplied Supreme Fixture with the specifications, he *885 provided a quote to J & V. Subsequently, J & V notified him that its bid had been accepted and sent Supreme Fixture a purchase order.

When Supreme Fixture received the order, it began preparing the customized shop drawings. Carl Hampel testified that the equipment was to be picked up by J & V and that Supreme Fixture was not obligated to deliver the equipment to Montana. However, during the manufacturing process, he had daily contacts by telephone and by facsimile with Steve Osmers, an employee of J & V, and during the building process, modifications required him to resubmit prices and drawings. He stated that, towards the end of the production process, J & V told him that it could not pick up the equipment or do the field welding in Montana but agreed to pay Supreme Fixture an additional amount for those services. The parties entered into an additional agreement, and J & V sent Supreme Fixture a separate purchase order reflecting those changes. According to Carl Hampel, ninety percent of the contract was performed in Arkansas.

The circuit judge found that J & V was properly served with the summons and complaint but failed to file a timely responsive pleading. He determined that J & V, by failing to file its motion to dismiss for lack of personal jurisdiction within thirty days after service, had waived its right to assert a lack of jurisdiction of the person. He also found that J & V had failed to demonstrate that it had, under Arkansas Rule of Civil Procedure 6(b)(2), cause for an enlargement of the response time.

At the hearing on damages, John Hampel, the president and chief executive officer of Supreme Fixture, testified that Supreme Fixture had received two checks from J & V, leaving a balance due of $30,638. Referring to Supreme Fixture's accounts receivable statement, he said that the phrase "Less 28,000 Dunn" indicated that J & V must have put a notation to that effect on its check or in an accompanying letter. He said that the payment of $28,000 from J.E. Dunn, the general contractor, was for the separate contract with Supreme Fixture to meet the new deadline of July 31. He emphasized that it was not paid in connection with the fabrication or delivery of the equipment covered by the original purchase order.

Carl Hampel also testified that Supreme Fixture did not receive the final drawings from J & V until June 23 and that, before that date, it could not fulfill the contract. Explaining the time line, Carl Hampel said it normally would take between six and eight weeks to produce the order. Further, based on J & V's failure to inform him until July 7 that the project had to be completely finished by the end of July, he told Mr.

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