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., for appellant.
Benjamin A. Gibson, for appellees.
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 affirm.
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 court's 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 court's 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 with the Wagoners.
Barnes's arguments, however, ask us to reweigh the
evidence. Disputed facts and determinations of credibility
are within the province of the fact-finder. Id.
next argues that the Wagoners did not establish any
construction standards or prove how Barnes had breached them.
Barnes did not make the specific argument regarding
establishing construction standards to the trial court or
receive a ruling on it. We will not consider an argument that
is raised for the first time on appeal. Davis v.
Davis, 2013 Ark.App. 180, at 5. Further, to the extent
that Barnes argues that the evidence does not support the
findings of breach, generally, he again asks us to reweigh
the evidence. As outlined above, there was extensive
testimony about the issues with the house that the new
contractor discovered and what measures he took to complete
the project after taking it over to fix those issues.
our review of the evidence, we are not left with a definite
and firm ...