David L. BARNES, Appellant
Robert WAGONER and Rhonda Wagoner, Appellees
FROM THE MARION COUNTY CIRCUIT COURT [NO. 45CV-12-86],
HONORABLE GORDON WEBB, JUDGE
E. Hensley, Jr., Conway, for appellant.
A. Gibson, Yellville, for appellees.
Appellant David Barnes appeals from an order of the Marion
County Circuit Court awarding the appellees, Rhonda and
Robert Wagoner, a $ 77,700 judgment against him after finding
that he had breached a contract with the Wagoners to build a
home. This is the third time this case has come before this
court; it was previously dismissed for finality
issues. It is now properly before us. We
June 2010, the Wagoners contracted with Barnes to build a
home for $ 100,000. By that December, the Wagoners had paid
Barnes $ 60,000 for materials and work completed but were
dissatisfied with the length of time the project was taking.
The Wagoners hired another contractor to inspect the work and
that contractor found several issues.
trial, the new contractor, Johnny Jagneaux, testified about
the problems he encountered when he took over the project:
(1) Barnes had used blocks from different manufacturers that
would not properly interlock; (2) the rebar used was the
wrong size; (3) the main structure was four inches out of
square (with up to, but ideally less than, one inch out of
square being acceptable); (4) the basement slab was poured
unevenly; (5) the window openings were too small; (6) Barnes
had started pouring concrete without consideration for where
plumbing pipes and air ducts would be placed; and (7) Barnes
had started to install flooring before the roof, causing the
flooring to be exposed to the elements, mildew, and require
removal and replacement.
testified on his own behalf. He explained that the delays and
extra costs were caused by the Wagoners changing the plans,
such as moving around window and door locations and raising
the house four feet. While working on the house, Mr. Wagoner
fell and broke his neck. Barnes explained that added to the
delay and the cost. He said he understood that he had not
been hired to handle any electrical, HVAC, or plumbing but
that it would be no extra trouble to pour concrete first then
cut holes wherever holes were needed.
court took the case under advisement. In its order, it found
that Barnes had breached the contract by failing to complete
the work in a timely or workmanlike manner. It found that the
Wagoners had paid Jagneaux $ 117,700 to fix the issues caused
by Barnes and to complete the construction. This was in
addition to the $ 60,000 they had already paid to Barnes.
Thus, it cost the Wagoners a total of $ 177,700 to build the
home they had originally contracted with Barnes to build for
$ 100,000. The court awarded the Wagoners $ 77,700— the
difference between the contract price and what they actually
paid. Barnes now appeals.
order to prove a breach-of-contract claim, one must prove
"the existence of an agreement, breach of the agreement,
and resulting damages." Keith Capps Landscaping &
Excavation, Inc. v. Van Horn Constr., Inc., 2014
Ark.App. 638, at 5-6, 448 S.W.3d 207, 210. In civil bench
trials, the standard of review on appeal is not whether there
is substantial evidence to support the findings of the court
but whether the courts findings were clearly erroneous or
clearly against the preponderance of the evidence.
Id. A finding is clearly erroneous when, although
there is evidence to support it, the reviewing
court on the entire evidence is left with a firm conviction
that a mistake has been made. Id. Where the issue is
one of law, our review is de novo. Id.
appeal, Barnes first argues that the evidence does not
support the courts findings that he failed to complete the
work in a timely or workmanlike manner. He argues that the
court did not consider the additional work Barnes did beyond
what was required in the contract. To support these points,
Barnes explains that the Wagoners requested numerous changes
to the specs, that the building did not need to be perfectly
square because "once the concrete is installed the wall
can be moved around to ensure the building is square,"
and that "there was never a timeframe to complete the
job." He said that he installed the blocks per the
manufacturer instructions and that Jagneaux did work beyond
the scope of the contract he had ...