Billingsley v. Planit Dirt Excavation & Concrete, Inc.

Citations: 399 S.W.3d 729; 2012 Ark. App. 266; 2012 WL 1327793; 2012 Ark. App. LEXIS 368Docket: No. CA 11-1082

Court: Court of Appeals of Arkansas; April 18, 2012; Arkansas; State Appellate Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

Dan Billingsley appeals a Saline County Circuit Court ruling that awarded Planit Dirt Excavation and Concrete, Inc. damages, costs, and attorney's fees for breach of contract following a bench trial. The appeal follows a previous dismissal due to the absence of a final order, which was rectified with an order entered on July 22, 2011. The contract was established for the construction of a swimming pool on Dan's property, but work ceased after a dispute over the second payment. Dan subsequently ordered Planit Dirt to leave the premises. Planit Dirt sued for breach of contract and conversion, while Dan counter-sued for breach of contract.

The trial court determined that Dan breached the agreement by halting work and failing to pay the second installment, leading to the dismissal of both Planit Dirt's conversion claim and Dan's counterclaim with prejudice. Planit Dirt was awarded $19,741 in damages, plus costs and fees, totaling $21,253.15. Dan's appeal contests the trial court's findings regarding breach of contract, asserting that Planit Dirt, not he, was in breach and challenging the measure of damages.

On appeal, the court reviews the trial court's findings de novo, affirming unless clear error is evident. The court found no clear error in the trial court's conclusion that Dan breached the contract, as it was supported by evidence and did not leave the court with a firm conviction of mistake. The contract, signed on July 7, 2008, outlined a total price of $62,500 to be paid in four installments, with no specified construction deadlines. The contract also stipulated that Planit Dirt was not liable for delays due to inclement weather and required Dan to notify the contractor in writing of any issues needing resolution.

The first payment for the pool construction contract was made by check at Dan's home when the contract was signed. Planit Dirt ordered pool kits on July 17, 2008, and parts were delivered to Dan's property. By early September 2008, Dan's wife was informed that the delivery had occurred, triggering the second payment, which was not received. On September 11, a confrontation between Dan and J.R. over the payment led to Dan ordering the construction crew to leave and involving law enforcement. Consequently, J.R.'s company did not finish the project.

In December 2008, Planit Dirt filed a complaint claiming Dan wrongfully retained the pool kit and breached the contract, resulting in a loss of $80,000 in profit, and sought damages, including punitive damages, interest, costs, and attorney's fees. Dan responded with a denial of the allegations and a counterclaim, asserting that the second payment was wrongfully demanded before the entire kit was delivered and alleging threats from J.R. He also claimed additional costs incurred for completing the project with another contractor, seeking damages and reimbursement from Planit Dirt.

Discovery included depositions, and Planit Dirt's motion for summary judgment was denied due to outstanding factual issues. Mediation was ordered, but the case proceeded to a bench trial in March and June 2010. Testimony was provided by Julien Bourganel, a representative from Desjoyaux Pools, who confirmed the delivery of the complete pool kit to J.R. He noted that J.R. sought payment prior to concrete pouring and witnessed the argument between Dan and J.R. Julien stated that Dan had instigated the confrontation and confirmed that work stopped with approximately 40% completed when Dan called authorities. Planit Dirt employee Dennis Neal testified that he believed the delivered kit was mostly complete, although the liner was not yet delivered, and stated the project was about 65% done before being halted by Dan.

During a job dispute, multiple witnesses testified regarding a heated argument between Dan and J.R. Dennis, a worker, reported hearing Dan loudly cursing at J.R. with derogatory terms, while he did not hear any insults from J.R. Dennis expressed surprise at Dan's behavior, noting that he and his wife had previously not indicated dissatisfaction with the work. Tom Jones, another employee, confirmed that no complaints had been made about the pool project before the argument and described the pool kit’s contents, stating that everything was present except for the diving board and ladders. He corroborated Dennis's account of Dan's threats and noted that Dan called the police and ordered them to leave the site, suggesting Dan had premeditated the decision to halt the project.

J.R., the owner of Planit Dirt Excavation and Concrete, Inc., explained that he began this project in August 2008 after delays due to rain. He stated that Dan's brother, Roger, managed the construction activities, and he had communicated with Roger without any issues. J.R. attempted to collect a second payment after delivering the pool kit but was told by Dan's wife that no further payments would be made, leading to continued work despite non-payment. On the day of the argument, J.R. was called to the site to discuss payment, where he faced Dan's aggressive response. After enduring several insults, J.R. retaliated verbally. He clarified that no one had inquired about the pool kit during negotiations or upon delivery and reported being approximately 70 to 75 percent complete when construction was halted. Attempts to resume work were met with silence from Dan's family, and months later, J.R. retrieved most of the pool kit components from Dan’s property.

J.R. testified that the pool kit included essential components like wall structures, filtration units, stairs, and panels necessary for construction before concrete was poured, though some parts, such as the diving board and lights, were not on-site, which he stated was customary. J.R. confirmed a cost breakdown with an expected net profit of $86,487.80. Lee Woodall, the contractor, completed the pool project in approximately two months starting in December 2008. Roger Urey, Dan's half-brother and overseer of the construction, recalled the pool kit's delivery about a week after excavation but noted missing items. He witnessed a heated argument between J.R. and Dan, during which J.R. used offensive language. Edward Jones and Bill Guessman, laborers, corroborated the existence of the argument and J.R.'s foul language. Brenda Billingsley, Dan's wife, stated that J.R. began working on the pool in early September and sought the second payment quickly, which raised her concerns about incomplete equipment. She described J.R.'s demeanor as agitated and noted the presence of deputies when she arrived to pay. Dan explained the protracted negotiation for a fair price and expressed frustration over payment for work that had not commenced until September, stating only 60% of the required items were present. He and J.R. had a confrontational exchange regarding payment, leading Dan to call the police to remove J.R. The trial judge later ruled that Dan breached the contract by ordering J.R. off the property, failing to make the second payment, and preventing the contract's completion.

J.R. was awarded $19,741 in damages, leading to Dan's appeal, which centers on the trial court's alleged error in not identifying J.R. as the breaching party. Dan claims he was coerced into halting construction due to J.R.'s threats. The appellate court found no clear error, noting that the trial court favored J.R.'s credibility in this "swearing match." The contract's language, which stipulated the second payment was due upon delivery of the pool kit, was interpreted without expanding its terms. Although the contract did not detail the pool kit components or delivery location, testimony indicated that most items were delivered to the site, with remaining items in Planit Dirt's possession for future installation. The trial court also heard that J.R. was not allowed to complete the job, a contractual obligation. 

Dan disputed the damages, asserting J.R. experienced no loss, contrary to J.R.'s evidence of $36,000 in lost profits, calculated at a 60% margin of the contract price. The court clarified that while claiming lost profits, a party must offer a complete set of figures but noted that less certainty is needed to prove the loss itself. J.R.'s awarded damages did not reflect clear error. Dan also sought reimbursement of his $21,825 initial payment, arguing J.R. was only responsible for labor and fuel costs, leaving him with an unfinished project. However, since the court upheld Dan as the breaching party, this claim was rendered moot. The appellate court affirmed the trial court’s decision, concluding no significant error occurred.