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J-McDaniel Constr. Co., Inc. v. Dale E. Peters Plumbing Ltd.

Supreme Court of Arkansas

June 19, 2014

J-MCDANIEL CONSTRUCTION COMPANY, INC.; JOHN B. MCDANIEL; and BARBARA G. MCDANIEL, APPELLANTS
v.
DALE E. PETERS PLUMBING LTD., d/b/a DALE PETERS PLUMBING AND IRRIGATION; ROBERT BOSTIC HAULING AND EXCAVATING, INC., d/b/a BOBBY BOSTIC HAULING AND EXCAVATING; ROBERT BOSTIC, INDIVIDUALLY; and ESQUIRE MARBLE COMPANY, APPELLEES

Page 459

[Copyrighted Material Omitted]

Page 460

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION. NO. CV-2009-7490. HONORABLE TIMOTHY DAVIS FOX, JUDGE.

Dover Dixon Horne PLLC, by: Wm. Dean Overstreet and Thane J. Lawhon, for appellants.

Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Jamie Huffman Jones, for appellees Robert Bostic Hauling and Excavating, Inc., and Robert Bostic.

Matthews, Sanders & Sayes, by: Doralee Chandler and Roy Gene Sanders, for appellee Esquire Marble Company.

The Barber Law Firm, by: Micheal L. Alexander and Rick Behring, Jr., for appellee Dale E. Peters Plumbing Ltd.

OPINION

Page 461

CLIFF HOOFMAN, Associate Justice.

Appellants, J-McDaniel Construction Company, Inc., John B. McDaniel, and Barbara G. McDaniel (collectively referred to as " McDaniel" ), appeal from an order of the Pulaski County Circuit Court granting summary judgment in favor of appellees, Dale E. Peters Plumbing Ltd., d/b/a Dale Peters Plumbing and Irrigation (" Peters" ); Robert Bostic Hauling and Excavating, Inc., d/b/a Bobby Bostic Hauling and Excavating, and Robert Bostic individually (" Bostic" ); and Esquire Marble Company (" Esquire" ). On appeal, McDaniel argues that the circuit court erred by dismissing its third-party claims against appellees. We have jurisdiction of this case pursuant to Ark. S.Ct. R. 1-2(a)(7) (2013), as this is a subsequent appeal to this court. We reverse and remand.

McDaniel began construction on a new home in Little Rock in late 2005 and hired Peters, Bostic, and Esquire as subcontractors to complete certain tasks necessary to build the home. Peters installed plumbing; Bostic performed excavation, fill, compaction, and site-preparation work; and Esquire installed a shower in the master bedroom. Susan and David Conrad

Page 462

(" the Conrads" ) purchased the home from McDaniel on June 2, 2006. Shortly thereafter, the Conrads noticed several problems with the home, such as settlement cracks in the walls, misalignment of doors, and a foul odor in the master bathroom. The Conrads notified McDaniel, and some attempts were made by McDaniel and Peters to remedy the problems from fall 2006 through summer 2009.

After these attempts were unsuccessful, the Conrads filed a complaint in the Pulaski County Circuit Court against McDaniel on December 2, 2009, alleging negligence and breach of the implied warranties of habitability, sound workmanship, and proper construction. The Conrads later amended their complaint on November 16, 2010, to add claims of fraudulent transfer and to pierce the corporate veil of J-McDaniel Construction Company and hold Barbara and John McDaniel personally liable. The Conrads also alleged that due to an agreement with McDaniel, the statute of limitations had been tolled until December 2, 2009.

On December 23, 2009, McDaniel filed an answer and a third-party complaint against Peters and Bostic, asserting that any foundation problems with the Conrads' home were caused by an improperly connected shower drain in the master bathroom and faulty excavation, fill, or site preparation. The complaint alleged breach of contract, negligence, and breach of the implied warranties of habitability, workmanlike performance, sound workmanship, and proper construction. McDaniel asked the court to enter judgment against Bostic and Peters for an amount equal to any and all liability that might be assessed against McDaniel as a result of the Conrads' complaint. McDaniel filed an amended third-party complaint on March 1, 2011, and added Esquire as a third-party defendant, asserting that it had improperly installed a marble shower in the master bathroom of the home. McDaniel also added claims against all third-party defendants for contribution and indemnity pursuant to common law and Ark. Code Ann. § 16-61-201.

On December 10, 2010, Peters filed a cross-claim against Bostic, seeking contribution, indemnity, and apportionment of fault pursuant to Ark. Code Ann. ยง 16-55-201. Bostic then filed a counter cross-claim against Peters, also seeking contribution, indemnity, and the right to apportionment of fault. On December 21, 2010, Bostic filed a motion for ...


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