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Butler & Cook, Inc. v. Ozark Warehouses, Inc.

Court of Appeals of Arkansas, Division III

April 1, 2015

BUTLER & COOK, INC., APPELLANT
v.
OZARK WAREHOUSES, INC., d/b/a CORRUGATED SPECIALTIES, APPELLEE

Page 684

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. No. CV-2013-569. HONORABLE J. MICHAEL FITZHUGH, JUDGE.

Smith, Cohen & Horen, PLC, by: Matthew T. Horan, for appellant.

Robertson, Beasley, Shipley & Redd, PLLC, by: Mark E. Ford, for appellee.

LARRY D. VAUGHT, Judge. ABRAMSON and KINARD, JJ., agree.

OPINION

Page 685

LARRY D. VAUGHT, Judge

Appellant Butler & Cook, Inc. (B& C), appeals the order entered by the Sebastian County Circuit Court, finding in favor of appellee Ozark Warehouses, Inc., d/b/a Corrugated Specialties (Corrugated), on its negligence claim and awarding Corrugated $12,000 damages. On appeal, B& C argues that the trial court clearly erred in (1) finding that Corrugated suffered damages, (2) finding that B & C was negligent, and (3) failing to assign comparative fault to Corrugated. We agree with B& C's first and second points on appeal; therefore, we reverse and dismiss.

Corrugated produces boxes and packaging supplies. In January 2012, Corrugated sought to purchase a used rotary die-cutter machine from a company in Pennsylvania. The rotary die-cutter machine was a thirty-six-year-old, eighty-foot-long industrial machine used to print and die-cut corrugated boxes. Corrugated's plant manager, Rodney Canada, testified that Corrugated was interested in the machine because it had two print sections, which had the capability of printing two colors on a box. Each print section was supposed to have a top (called the print-impression roller) and bottom roller, and box material was fed between the rollers for printing. The rollers are approximately nine feet long and made of cast iron.

Rodney Canada traveled to Pennsylvania to inspect the machine and observed that only one of the print sections worked. The other print section was inoperable because its print-impression roller was missing. According to Canada, the roller had been removed from the machine and was sitting outside under a covered dock. He testified that the roller had been sitting outside in the moisture and humidity, it was rusted, it had two cracks in it (one was a foot long and the other was six inches long), and it was missing an end plate, which prevented it from being installed into the machine and rotating on its axis. Canada testified that the roller was an unusable " pile of junk." He said that Corrugated opted to purchase the machine, with the broken roller " as is," for a $20,000 reduction in the sales price.

The machine was transported to Arkansas, and in February 2012, Canada contacted Ivan Cummings, a machinist and mechanic for B& C, to provide an estimate

Page 686

to repair the broken print-impression roller. Canada said that he showed Cummings the broken roller and told him that he wanted it to operate like the print-impression roller that was operable. Canada said that the repairs would include welding the two cracks in the roller and adding an end plate. Canada said that Cummings asked whether the roller needed to be " turned down." [1] Canada testified that he told Cummings the most the roller could be turned down was twenty one-thousandths of an inch. Canada said, " It has got to be parallel, it has got to be straight; that is the whole key to it." Canada stated that if the roller was turned down too far, it would not work because the roller would not touch the boxes running underneath it and would not be able to print on them. Neither Canada nor Cummings took measurements of the roller.

On February 27, 2012, B& C tendered a sales order to Canada, offering to do the repairs to the roller for ...


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