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Glenn v. Bubbus

Court of Appeals of Arkansas, Division IV

April 18, 2018



          Lloyd Ward, for appellant.

          Van Kleef & Vaughn, by: Braden R. Vaughn; and Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for appellee.


         Appellant John V. Glenn appeals following a bench trial in the Pope County Circuit Court. On appeal, Glenn argues that the circuit court erred by finding that there was a breach of contract and by awarding damages and attorney's fees. We disagree and affirm.

         This case arises from a dispute regarding the terms of a lease agreement between Glenn and appellee Mike Bubbus. On June 28, 2004, the parties entered into a ten-year lease agreement which provided that Bubbus would lease a mobile-home park from Glenn. The lease permitted Bubbus to install, at his own expense, furniture, fixtures, and equipment on the premises. Language from the lease also provided that "such furniture, fixtures, and equipment shall be deemed to be [Bubbus's] trade fixtures and shall not be deemed incorporated into or a part of the Demised Premises provided they can be removed without causing any damage to the structural elements of the Demised Premises." At the conclusion of the term of the lease, the lease agreement permitted Bubbus to "remove from the Demised Premises all of such trade fixtures and other personal property belonging to Tenant, " as long as Bubbus was not in default, and as long as he repaired any damage to the property caused by such removal.

         During the term of that lease, Bubbus installed electrical meter boxes, related electrical equipment, and water meters to the individual mobile-home lots on the property. With respect to the electrical meter boxes, Bubbus would install a six-by-six-inch square piece of lumber vertically into the ground. Bubbus would then attach a rectangular metal meter box to that pole, and Entergy would later insert the meter itself into the meter box. Bubbus would then install a conduit in the ground between the pole and the mobile home. Wiring would then be run from the mobile home, up the pole, into the meter box, then out of the meter box and to the top of the pole. Entergy would then connect this wire at the top of the pole to the main electrical power grid.

         Because the City of Russellville would install only one master water meter to the leased property's exterior lot line, Bubbus also installed individual water meters to each lot so that he could determine how much water each tenant used for billing purposes. At the conclusion of the lease term, Bubbus asked whether he could remove the meters and was told he could not.

         A dispute arose as to who was entitled to these items, and on August 31, 2015, Bubbus filed a complaint in replevin. Glenn timely filed an answer and counterclaim on September 14, 2015. On September 23, 2015, Bubbus filed an answer to the counterclaim. Glenn then filed a supplemental counterclaim on March 21, 2016, which the court found to be time-barred by the statute of limitations and dismissed it with prejudice on July 7, 2016. Glenn filed a supplemental answer with affirmative defenses on August 11, 2016.

         On October 19, 2016, Bubbus filed an amended complaint, adding a claim for breach of contract. Glenn then filed an amended answer with affirmative defenses and a counterclaim on January 3, 2017. Bubbus timely filed an answer on January 4, 2017.

         A bench trial was held on February 2, 2017. After the trial, the parties submitted closing statements in written form. On April 25, 2017, the circuit court entered a final order, judgment, and order for delivery, finding in favor of Bubbus. The order does not expressly address Glenn's counterclaim, but Glenn's notice of appeal resolves that issue by stating that he "further abandons any pending but unresolved claims."[1] Accordingly, this appeal is now properly before us.[2]

         We have long held that, in appeals from bench trials, we will reverse only if "the trial court's findings are clearly erroneous, or clearly against the preponderance of the evidence." Adamson v. Sims, 85 Ark.App. 278, 282, 151 S.W.3d 23, 25 (2004). In applying this standard of review, our court gives recognition to "the trial judge's superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony." Gosnell v. Indep. Serv. Fin., Inc., 28 Ark.App. 334, 335, 774 S.W.2d 430, 431 (1989). Further, the evidence is viewed "in a light most favorable to the appellee, resolving all inferences in favor of the appellee." McSparrin v. Direct Ins., 373 Ark. 270, 272, 283 S.W.3d 572, 574 (2008).

         At the trial, Glenn presented no witnesses nor introduced any evidence and rested immediately after Bubbus rested. On appeal, he must show that the circuit court made a clearly erroneous finding. However, he has not done so. Based on our review of the record before us, the circuit court's findings (1) that Glenn breached the parties' contract by not allowing Bubbus to remove items at the end of the lease term; (2) that the items were Bubbus's property and trade fixtures and therefore could be removed at the end of the lease term; (3) that Bubbus be awarded $14, 400 as damages for the retention of the property by Glenn; and (4) that Bubbus was entitled to attorney's fees, were consistent with the only testimony presented at trial.

         On appeal, Glenn argues that there was no breach of contract, that damages were improperly awarded, and because there was no breach of contract, there can be no award of attorney's fees.[3] The Arkansas Supreme Court has announced a three-part test to determine whether an article remains personal property or becomes a fixture: "(1) whether the items are annexed to the realty, (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected, and (3) whether the party making the annexation intended to make it permanent." Pledger v. Halvorson, 324 Ark. 302, 305, 921 S.W.2d 576, 577 (1996). In this case, based on the language of the lease and the testimony presented at trial, ...

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