Pruitt v. Dickerson Excavation, Inc.

379 S.W.3d 766, 2010 Ark. App. 849, 2010 Ark. App. LEXIS 889
CourtCourt of Appeals of Arkansas
DecidedDecember 15, 2010
DocketNo. CA 10-355
StatusPublished
Cited by6 cases

This text of 379 S.W.3d 766 (Pruitt v. Dickerson Excavation, 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
Pruitt v. Dickerson Excavation, Inc., 379 S.W.3d 766, 2010 Ark. App. 849, 2010 Ark. App. LEXIS 889 (Ark. Ct. App. 2010).

Opinions

JOHN B. ROBBINS, Judge.

| Appellants Johnny and Toni Pruitt appeal from an order entered by the Franklin County Circuit Court ruling that appellee Dickerson Excavation, Inc., was entitled to a materialmen’s lien and a judgment in the amount of $30,000. On appeal, appellants argue that the circuit court erred in (1) refusing to make additional findings of fact and conclusions of law; (2) allowing parol evidence to be introduced to vary the terms of a contract; (3) failing to find that appellee had waived its lien; (4) awarding damages to appellee; (5) failing to find that appellee’s claim was barred by the doctrine of accord and satisfaction; and (6) granting | gsummary judgment to appellee on appellants’ slander-of-title claim. We affirm in part and reverse and remand in part.

Appellants are the owners of real property located in Franklin County. In late 2006, appellants decided to enter the poultry business. They obtained a bid from appellee, dated February 8, 2007, to build pads for four turkey houses for $80,000. Appellants, appellee, and Farm Credit Services of Western Arkansas, as the lender, entered into an agreement, dated April 17, 2007, for construction of the pads. The agreement called for payment of $15,000 upon completion of two pads, with the balance payable upon completion of the other two pads.

Work on the project commenced on March 8, 2007. The pads were built parallel to each other, with the two middle pads completed at the end of May 2007. Appel-lee executed a “Waiver of Lien to Date” on June 14, 2007, and was paid $15,000.

At some point after the completion of the first two pads, appellee encountered rock that either needed to be removed or covered by additional dirt before the two remaining pads could be completed. On June 29, 2007, appellee sent a letter to appellants stating that it would no longer be responsible for removing the rock at the end of the pads. The letter was signed as received by Johnny Pruitt. Appellee ceased work on the project. On July 15, 2007, appellee sent another letter to appellants stating that the rock removal was not part of the original contract and was being done on an hourly basis. This letter was also signed as received by Johnny Pruitt. After this second letter, appellants hired another contractor to break up the |srock and appellee used this rock for fill. Appel-lee hauled off most of the rock and appellants hired yet another contractor to complete the pad construction at the end of July 2007. On August 3, 2007, appellee executed another “Waiver of Lien to Date” and was paid $15,000. The check was marked “payment in full.” Thereafter, on September 11, 2007, appellee filed a “Statement of Claim for Lien” against appellants’ property. The statement asserted that appellee was owed $51,825, plus interest from August 2, 2007, and attorney’s fees.

On September 20, 2007, appellants filed suit alleging that appellee had slandered the title to their property by filing the lien. The complaint sought compensatory and punitive damages and attorney’s fees. Ap-pellee answered and denied the material allegations of the complaint. Appellee asserted that the filing of the lien was protected by privilege and filed a counterclaim seeking to foreclose on its lien in the amount of $51,825.

Appellee moved for summary judgment, asserting that the statements in the lien were protected by absolute privilege because they were made as part of judicial proceedings to enforce its lien and that the statements were made in good faith with probable cause. In response to the motion, appellants submitted the affidavit of Johnny Pruitt in which he accused appel-lee of double billing for the use of its equipment and not charging only for the extra work incurred in removing the rock. Pruitt also averred that appellee’s president, Doug Dickerson, told him that the rock removal would cost between $12,000 and $15,000, and certainly not over $20,000.

|4The circuit court granted appellee’s motion for summary judgment. The court found that appellee had probable cause to file its lien because of appellants’ admitted failure to pay for the extra work removing rock. The court also found that the lien was merely a preliminary step in the statutory procedure and, as such, was privileged. The court dismissed appellants’ slander-of-title claim. After the circuit court granted summary judgment on appellants’ slander-of-title claim, appellants made several attempts to have either their claim reinstated or appellee’s lien dismissed on the basis that the lien waiver for the second draw included the rock removal. The court denied appellants’ motions.

The case proceeded to a bench trial. After hearing testimony, the circuit court issued a letter opinion on December 1, 2008. The court found that the parties’ contract was silent as to rock and timber removal. The court also found that Johnny Pruitt acknowledged that additional money was due appellee for the removal of the rock. The court then addressed appellants’ claim that there was an accord and satisfaction and found that there was no agreement by appellee to accept the $80,000 as payment of the entire sum due. The court concluded that appellee was entitled to a lien on the property and to judgment in the amount of $30,000. Each party was to bear its own attorney’s fees.

On December 10, 2008, prior to entry of judgment, appellants filed a motion seeking findings of fact and conclusions of law on twenty-two specific issues, many with multiple subparts. The court responded with a letter stating that its earlier letter opinion satisfied the requirements of Ark. R. Civ. P. 52.

|5We dismissed appellants’ attempted appeal from the judgment for lack of a final order.1 Following remand, the circuit court entered an order adopting the December 1, 2008 letter opinion issued by its predecessor. This appeal followed.

In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104 Ark.App. 262, 290 S.W.3d 626 (2009). 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. First Nat’l Bank v. Garner, 86 Ark.App. 213, 167 S.W.3d 664 (2004). Recognition must be given to the circuit judge’s superi- or opportunity to determine the credibility of witnesses and the weight to be given to their testimony. Brown v. Blake, 86 Ark.App. 107,161 S.W.3d 298 (2004).

Relying on our decision in Apollo Coating RCS, Inc. v. Brookridge Funding Corp., 81 Ark.App. 396, 103 S.W.3d 682 (2003), appellants first argue that the circuit court erred by not making findings on the twenty-two issues contained in their posttrial motion. They argue that Arkansas Rule of Civil Procedure 52(a) makes such findings mandatory when a timely request is made.

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Bluebook (online)
379 S.W.3d 766, 2010 Ark. App. 849, 2010 Ark. App. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pruitt-v-dickerson-excavation-inc-arkctapp-2010.