Garrison Properties, Inc. v. Branton Construction Co.

Citations: 253 Ark. 441; 486 S.W.2d 672; 1972 Ark. LEXIS 1491Docket: 5-6071

Court: Supreme Court of Arkansas; November 20, 1972; Arkansas; State Supreme Court

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Branton Construction Company, Inc. (Branton) was contracted by Garrison Properties, Inc. (Garrison) to construct an asphalt parking lot for a truck terminal, with a completion deadline of 75 calendar days and stipulated liquidated damages of $35 per day for delays. Work began on August 19, 1968, but was not finished until June 6, 1969. Garrison started using the terminal on June 27, 1969. Garrison withheld part of the contract price, leading Branton to sue for the remaining balance and to establish materialman’s and laborer’s liens. Garrison counterclaimed, arguing that Branton exceeded the completion deadline by 239 days, resulting in damages of $8,365. Garrison also claimed that Branton had been paid $32,087.82 and that the withheld balance was for liquidated damages, alleging that Branton's work was defective. In response, Branton denied liability for liquidated damages, attributing delays to instructions from Garrison’s consulting engineer and inclement weather, and asserted that Garrison waived its right to such damages. The trial court ultimately ruled in favor of Branton for $11,578.72, awarded Garrison $3,000 on its counterclaim, and established a lien on Garrison’s property for the net judgment. Garrison appealed, challenging the sufficiency of evidence supporting the judgment in favor of Branton and the waiver of liquidated damages. However, the court noted it could not adjudicate the merits of the waiver argument due to a lack of specific findings regarding the basis for the $3,000 judgment, leaving uncertainty whether it was awarded for liquidated damages or defective work.

The appellant argues that the court found Garrison had waived his right to liquidated damages, which is the main issue on appeal. While the appellant believes there was no waiver concerning the job completion delay, this remains a factual question, similar to the matter of defective work. The jury's verdict in a related case, Davis v. Ralston Purina Company, exemplifies that the verdict must align with the evidential figures presented. The appellants contend that the jury must have found both contracts breached, thus acting arbitrarily by not awarding the full damages claimed. They assert the trial court abused its discretion in denying a new trial motion. The court cites Fulbright v. Phipps, which established that a jury's verdict does not need to match the exact proof presented and can reflect a compromise. The trial court's findings are treated similarly to jury verdicts on appeal. Furthermore, the appellant raises a point regarding a $3,000 payment made by Garrison that was not credited in the payment requests submitted by Branton. Two requests for final payment were made, with discrepancies noted by Lowe, the Office Supervisor. The first request indicated an amount due of $13,681.23 after prior payments, while the second showed an amount due of $11,578.72. Garrison's payment of $3,000, for additional work, was not accounted for in these requests. Although Branton claimed the second request complied with Lowe's directions, Lowe testified he was unaware of the $3,000 payment during his review. The testimony of the appellee was inconsistent regarding knowledge of the payment when preparing the final statement.

The witness, Branton, confirmed he did not inform Mr. Lowe about receiving a $3,000 payment and expressed uncertainty about whether Lowe was aware of it. During questioning, Branton explained that the reduction in a payment request from over $13,000 to $11,500 was due to receiving a $3,000 payment from Mr. Graham, but clarified that this payment was not associated with any extra work performed. Branton's final estimate included billing for 4,300 yards of unclassified excavation at 85 cents per yard, although he initially stated the contract amount was 3,500 yards. He acknowledged that the additional excavation credit was accounted for in his final estimate, which suggested that no extra work had been done between the two payment requests related to the $3,000. The judgment was affirmed on the condition that remittitur is entered within 17 days, or it would be reversed and remanded for a new trial. This $3,000 payment is distinct from another $3,000 referenced in a counterclaim. The testimony indicated that Lowe had approved the second request for payment, which allowed for the increased excavation amount.