Stephen W. Boatright, Individually and on Behalf of Stephen W. Boatright, Dds, P.A. v. S-R Plaza, LLC

2021 Ark. App. 47, 617 S.W.3d 726

• Court: Court of Appeals of Arkansas
• Decided: February 3, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 47 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION III No. CV-20-319 2023.06.22 10:35:33 -05'00' 2023.001.20174 Opinion Delivered: February 3, 2021 STEPHEN W. BOATRIGHT, INDIVIDUALLY AND ON BEHALF OF STEPHEN W. BOATRIGHT, DDS, APPEAL FROM THE PULASKI P.A. COUNTY CIRCUIT COURT, APPELLANTS NINTH DIVISION [NO. 60CV-13-2976] V.

S-R PLAZA, LLC HONORABLE MARY SPENCER APPELLEE MCGOWAN, JUDGE AFFIRMED

RITA W. GRUBER, Judge

This appeal arises from a landlord-tenant dispute over damages suffered by the

landlord at the termination of the parties’ lease. 1 Appellants Stephen Boatright, individually,

and Stephen Boatright, D.D.S., P.A. (hereinafter, “Boatright”), contend on appeal that the

circuit court abused its discretion by granting the landlord S-R Plaza’s motion in limine and

thereby excluding any evidence regarding repairs and alterations to the leased premises after

termination of the lease. Boatright also appeals the circuit court’s award of attorney’s fees

awarded pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999). We affirm.

1 We dismissed a previous appeal in this case for lack of a final order. See Boatright v. S-R Plaza, LLC, 2018 Ark. App. 582. On July 30, 2002, S-R Plaza entered into a lease with Boatright for a period of ten

years for appellants’ use as a dental office. 2 The lease space was in a new building that had

not been “finished out.” Pursuant to a construction-allowance arrangement, Boatright hired

a contractor and installed all interior walls, molding, cabinetry, heat and air, plumbing

fixtures, floor covering, lighting, and dental equipment to create a dental office in the space.

Excluding Boatright’s “moveable equipment or furniture” and “dental equipment,” all

“alterations, physical additions or improvements to the leased premises made by Tenant”

became the property of S-R Plaza and were to be surrendered with the lease upon

termination. At the end of the extended lease term, the parties disagreed about when

Boatright had “vacated” the premises and, consequently, the amount of rent that remained

due. They also disputed the condition of the premises after Boatright had vacated and

whether Boatright had removed items belonging to S-R Plaza under the lease.

S-R Plaza filed a complaint against Boatright contending that they had failed to

vacate by the end of the lease term and that they had removed sinks and counters, millwork,

cabinets, and granite base trim from the leased premises before vacating. S-R Plaza alleged

that Boatright had breached the lease agreement and requested damages for unpaid rent and

for removal of the items and associated damage to the property. They also alleged a claim

of conversion, contending Boatright had exercised dominion and control over S-R Plaza’s

property—sinks, counters, millwork, cabinets, and base trim—in violation of S-R Plaza’s

rights and requested damages for the replacement cost of the items. Boatright filed an answer

denying the claims and later an amended answer and counterclaim, alleging breach of the

2 The lease was extended for several months, but no issues related to this are on appeal.

2 lease agreement due to S-R Plaza’s failure to provide construction-administration services

as promised.

On December 29, 2014, the circuit court granted in part S-R Plaza’s motion for

summary judgment finding Boatright breached the lease agreement “as to the amounts due

and owing” for rent for April and May 2013 and finding Boatright breached the lease

agreement regarding removal of granite base moldings from the entire leased premises and

the sinks and toilets from the staff restroom and patients’ restroom. The court found that a

question of fact remained as to whether fixtures in areas other than restrooms, cabinetry,

and countertops constituted “dental equipment” and thus denied summary judgment for

those items.

The parties subsequently took depositions and conducted discovery, disagreeing on

exactly what evidence was discoverable regarding damages. In August 2015, the circuit court

entered an order denying Boatright’s motion to compel discovery of information about the

then current tenant, a bank, which occupied Boatright’s former leased space. Boatright had

argued that the information and an inspection of the space was necessary to prove damages

and S-R Plaza’s ability to mitigate those damages. S-R Plaza had contended that any

discovery regarding the current lease and tenant was private or confidential and involved

entities that were not parties to the lawsuit. S-R Plaza argued that any alteration to the

premises after the lease was terminated was not relevant. The court agreed and denied the

motion to compel. After further attempts by Boatright to discover evidence concerning the

subsequent tenant and changes it had made to the leased space, the court entered an order

3 on March 17, 2017, granting S-R Plaza’s motion for protective order and motion to quash

Boatright’s subpoena to the bank tenant.

Relying in part on these orders, S-R Plaza filed a motion in limine in June 2017

requesting the exclusion of any evidence of repairs or alterations made to the leased premises

after Boatright had vacated in May 2013. S-R Plaza argued that any changes made by the

bank to the space were irrelevant and any potential probative value was outweighed by the

danger of unfair prejudice, confusion of the issues, and misleading the jury. On November

1, 2017, the court granted S-R Plaza’s motion, finding that damages included the reasonable

expense of necessary repairs to any property that was damaged and the cost of restoring the

property to the condition it was in before the injury. The court found that the damages for

breach of the lease, if any, were to be determined on the date the lease ended.

The circuit court held a jury trial on November 14 and 15, 2017, and entered a

judgment in S-R Plaza’s favor on December 8 incorporating the jury’s interrogatories. All

six of the jury’s interrogatories concerned S-R Plaza’s claim for breach of contract and

consequent damages. The jury found that Boatright breached the lease by removing

millwork from the reception and lounge areas of the leased premises and that Boatright held

over in the leased premises in May 2013. S-R Plaza requested and was awarded attorney’s

fees, costs, and prejudgment interest.

Boatright filed this appeal, alleging that the circuit court abused its discretion in

granting the motion in limine and excluding any evidence or argument regarding

subsequent repairs or alterations to the leased premises after termination of the lease. They

also challenge the circuit court’s award of attorney’s fees.

4 I. Motion in Limine

We turn first to Boatright’s argument that the circuit court abused its discretion in

excluding evidence of repairs and alterations made to the leased premises after Boatright had

vacated. In reviewing the circuit court’s grant of a motion in limine to exclude evidence,

we must determine whether the circuit court abused its discretion in refusing to allow

evidence to be admitted. Shields v. State, 357 Ark. 283, 287–88, 166 S.W.3d 28, 32 (2004).

On appeal, we will not reverse a circuit court’s ruling on the admission of evidence absent

an abuse of that discretion, nor will we reverse absent a showing of prejudice. Rodgers v.

CWR Constr., Inc., 343 Ark. 126, 130, 33 S.W.3d 506, 509 (2000).

Boatright argues that this evidence was highly relevant to the actual damages suffered

by S-R Plaza. The jury found that Boatright breached the parties’ agreement by removing

millwork from the reception and lounge areas and awarded S-R Plaza $8,326 for the

millwork on the basis of an estimate provided by Adam Hart. Boatright wanted to introduce

evidence through Mr. Hart—whose construction company provided an estimate of the cost

to restore the property to the condition it should have been in at the conclusion of the

lease—that his company never performed the repairs or incurred any expense to fix the

space. Boatright also wanted to introduce testimony through Dixon Flake, S-R Plaza’s

corporate representative, that Delta Bank & Trust had leased the space after Boatright’s lease

ended, that Mr. Hart had not performed the work set forth in his estimate, and that S-R

Plaza had not incurred any expense to perform the repairs. Boatright argues that if S-R Plaza

never performed the work and repairs set forth in Mr. Hart’s estimate, it cannot recover

that amount in damages because it may only recover for its “actual loss.” We disagree.

5 In general, damages recoverable for breach of contract are those damages that would

place the injured party in the same position as if the contract had not been breached. Dawson

v. Temps Plus, Inc., 337 Ark. 247, 987 S.W.2d 722 (1999). Damages must arise from the

wrongful acts of the breaching party. Spann v. Lovett & Co., 2012 Ark. App. 107, at 16, 389

S.W.3d 77, 91. Moreover, the lease agreement in this case specifically provided that the

“cost and expense of any repairs necessary to restore the condition of the leased premises”

was to be borne by Boatright. The jury found that Boatright breached the lease agreement

by removing millwork. The only evidence of the cost to replace that millwork was $8,326.

The damages were incurred and measured at the time the lease terminated and Boatright

vacated the space. Whether S-R Plaza actually made the repairs and the substance of its lease

negotiations with a subsequent tenant are not relevant to the damages recoverable for

Boatright’s breach. Boatright has cited no authority or convincing argument otherwise. As

this court has stated many times, arguments that are unsupported by convincing argument

or authority will not be considered on appeal, unless it is apparent without further research

that the arguments are well-taken. Webb v. Bouton, 350 Ark. 254, 260, 85 S.W.3d 885, 888–

89 (2002). Accordingly, we hold that the circuit court did not abuse its discretion in

excluding this evidence.

II. Attorney’s Fees

We turn now to Boatright’s challenge to the circuit court’s award of attorney’s fees.

While the decision to award an attorney’s fee and the amount awarded are reviewed under

an abuse-of-discretion standard, we review factual findings by a circuit court under a clearly

erroneous standard. Carter v. Cline, 2013 Ark. 398, at 5, 430 S.W.3d 22, 26. Although there

6 is no fixed formula for determining a reasonable attorney’s fee, a court should be guided by

these long-recognized factors set forth in Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800

S.W.2d 717 (1990): (1) the experience and ability of the attorney; (2) the time and labor

required to perform the service properly; (3) the amount in controversy and the result

obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee

customarily charged for similar services in the local area; (6) whether the fee is fixed or

contingent; (7) the time limitations imposed upon the client in the circumstances; and (8)

the likelihood, if apparent to the client, that the acceptance of the particular employment

will preclude other employment by the attorney. Because of the circuit court’s intimate

acquaintance with the record and the quality of service rendered, the appellate court will

usually recognize the circuit court’s superior perspective in assessing the applicable factors.

Bateman v. Heird, 2015 Ark. App. 524, at 2, 472 S.W.3d 142, 143.

Boatright contends that the circuit court abused its discretion in awarding attorney’s

fees in the amount of $78,439.72 because S-R Plaza was not the prevailing party and the

fees awarded are unreasonable. The court’s order provides in pertinent part as follows

(emphasis added):

A. Plaintiff, S-R Plaza LLC, was the prevailing party in this lawsuit for breach of a Lease Agreement.

B. As the prevailing party, pursuant to the Lease Agreement and Ark. Code Ann. § 16- 22-308, Plaintiff is entitled to be awarded its reasonable attorneys’ fees incurred in this matter.

C. The relevant factors to be considered by this Court in determining what constitutes a reasonable award of attorneys’ fees are set forth in Chrisco v. Sun Industries, 304 Ark. 227, 800 S.W.2d 717 (1990).

7 D. After due consideration of the pleadings and the relevant factors outlined in Chrisco, this Court FINDS, ORDERS and DECREES that Plaintiff, S-R Plaza LLC, should be and is hereby awarded supplemental judgment against Defendants, Stephen W. Boatright, individually, and on behalf of Stephen W. Boatright, DDS, P.A., in the amount of Seventy-Eight Thousand Four Hundred Thirty-Nine Dollars and 72/100 ($78,439.72) for its reasonable attorneys’ fees.

The court stated specifically in its order that it was persuaded that S-R Plaza was the

prevailing party and “pursuant to the Lease Agreement, as well as the Arkansas statute

permitting attorney’s fees in breach of contract actions, Ark. Code Ann. § 16-22-308, [S-

R Plaza] is entitled to attorney’s fees.”

When a circuit court bases its decision on more than one independent ground—as

the circuit court did here when it awarded attorney’s fees pursuant to the parties’ lease

agreement and pursuant to Ark. Code Ann. § 16-22-308—and the appellant challenges

fewer than all those grounds on appeal, we will affirm without addressing any of the grounds.

Evangelical Lutheran Good Samaritan Soc’y v. Kolesar, 2014 Ark. 279, at 6. The governing

statute provides that in a breach-of-contract case, “the prevailing party may be allowed a

reasonable attorney’s fee.” Ark. Code Ann. § 16-22-308 (Repl. 1999). In addition, pursuant

to the parties’ lease, Boatright agreed to pay S-R Plaza’s reasonable attorney’s fees in the

event Boatright defaulted on “any terms, covenants, agreements, or conditions” contained

in the lease and S-R Plaza hired an attorney to enforce the provisions. On appeal, Boatright

challenges the award of attorney’s fees under the statute only. Boatright argue that S-R

Plaza was not the “prevailing party” under the statute and that the award was unreasonable.

Because Boatright failed to challenge all the grounds that the circuit court relied on in

making its decision, we affirm the fee award without addressing the merits.

Affirmed.

8 WHITEAKER and VAUGHT, JJ., agree.

Danny R. Crabtree, for appellant.

Friday, Eldredge & Clark, LLP, by: Price C. Gardner and Phillip M. Brick, Jr., for

appellee.