JOHN V. GLENN APPELLANT
MIKE BUBBUS APPELLEE
FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-15-354]
HONORABLE DENNIS CHARLES SUTTERFIELD, JUDGE.
Ward, for appellant.
Kleef & Vaughn, by: Braden R. Vaughn; and Taylor &
Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C.
Taylor, for appellee.
RAYMOND R. ABRAMSON, JUDGE.
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.
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.
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.
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.
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.
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,
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." Accordingly, this appeal is now
properly before us.
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).
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.
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. 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,