[Copyrighted Material Omitted]
FROM THE NEVADA COUNTY CIRCUIT COURT [NO. 50CV-15-2],
HONORABLE DUNCAN CULPEPPER, JUDGE
& Phillips, P.A., by: Steve R. Crain, for appellant.
Vasser & Barber, PLLC, Prescott, by: A. Glenn Vasser; and
Wright, Lindsey & Jennings LLP, Little Rock, by: Rodney P.
Moore and Michael A. Thompson, for appellee.
appellee, Chris Colbey d/b/a TimberPro Land Clearing
(Colbey), sued the appellant, Reynolds Forestry Consulting
and Real Estate, PLLC (Reynolds), for breach of contract,
alleging that Reynolds failed to pay for site-preparation
services that Colbey had performed on several tracts of
forest land. After a bench trial, the circuit court found
Reynolds in breach of contract and awarded Colbey damages and
Reynolds now appeals the circuit courts judgment, alleging
that reversal is warranted because Colbey was the first to
materially breach the contract. Reynolds also asserts that
the circuit court abused its discretion when it awarded
attorneys fees to Colbey. We find no error and affirm.
8, 2014, Colbey and Ted Reynolds, the owner of Reynolds
executed a "Mechanical Site Preparation 2014
Contract" in which Colbey, in exchange for monetary
payment, agreed to clear and prepare several tracts of land
for reforestation beginning "no later than July 15,
2014," and finishing "no later than December 31,
2014." The contract required Colbey to "work on
scheduled tracts continuously until complete," but
allowed him to move his equipment "when tracts cannot be
site prepared due to rains." The contract also required
Colbey to "take all reasonable precautions against
destructive practices," including using his heavy
equipment on the land "during excessively wet
weather," and it gave him the discretion to determine
when the conditions were not suitable. Reynolds likewise
had the ability to suspend operations that were underway if,
inter alia, "ground conditions [were] such that
continued operations would cause excessive damage."
Finally, either Reynolds or Colbey could terminate the
contract, with proper notice, "when either party does
not adhere to all aspects of this contract."
of the tracts of land were wet, to some degree, when Colbey
began work on the contract in July 2014. Nonetheless, Colbey
was able to finish preparing several of the tracts from late
July to mid-August 2014. Most notably, he finished 172 acres
on a tract of land called the Nevada 440 on July 28, 2014.
Colbey stated that the Nevada 440 tract was wet, but he and
his crew "were able to work around it and get a majority
of it done." Reynolds expressed his satisfaction with
Colbeys work on the Nevada 440 tract, and Colbey billed
Reynolds $ 44,716 for the job.
the completion of the Nevada 440 tract, Colbey and Reynolds
discussed when the remaining lowland tracts would be dry
enough for Colbey to begin work on them. Reynolds told Colbey
that two tracts, the Nevada 120 and the Nevada
409/411, had been sprayed with herbicide and,
consequently, would not be ready for site preparation until
August 29, 2014.
subsequently moved on to another tract, the Nevada 115, and
finished work on August 9, 2014. He billed Reynolds for $
25,549. Colbey next finished a tract in Magnolia, the
Chambers/Prince 80 tract, on August 13, 2014, and he billed
Reynolds $ 11,455. Colbey then performed two types of
services on two tracts in Union County, the Simmons 36 and
the Simmons 98. He first performed a "site prep
burn," in which he created a fire lane around the
perimeter of the tracts and burned debris. He billed Reynolds
$ 3,093 for that service. Colbey then sheared tree stumps and
otherwise prepared the Simmons tracts for replanting. He
finished on August 21, 2014, and sent an invoice to Reynolds
for $ 16,410.
and Reynolds revisited the topic of the Nevada 120 and the
Nevada 411 tracts on or about August 21, 2014, when they
began exchanging conflicting opinions about whether those
tracts were ready for Colbey to begin preparing them for
replanting. Colbey determined that the land was still too wet
to support his equipment and, based on his previous
discussion with Reynolds, did not expect those tracts to be
ready until August 29, 2014.
Consequently, in the interim, Colbey moved his equipment to
another tract nearby— the Potlach tract— to
perform work on a different contract. That did not sit well
with Reynolds, who insisted that its tracts were dry enough
for Colbey to begin preparing them. Reynolds threatened to
withhold the $ 44,716 payment for Colbeys work on the Nevada
440 tract to "partially offset anticipated loss in
chemical and cuttings due to [Colbeys] damaging
disagreement intensified when Colbey finished the work on the
Potlach tract and moved his equipment to the Nevada 120 and
the Nevada 411 tracts on August 29, 2014. Colbey apparently
did not move forward at all on the Nevada 120 tract because
it was "saturated," and his equipment
"immediately" got stuck. Colbey started work on the
Nevada 411 tract on August 29, but wet conditions there
caused similar problems with his equipment.
apparently told Reynolds that the Nevada 120 and the Nevada
411 tracts were still too wet for site preparation because,
on August 30, 2014, Ted Reynolds sent an email reiterating
Reynoldss opinion that the tracts were dry enough to prepare
for replanting. Reynolds also declared the following:
Chances this year of completing previously dry 300 acres on
411 followed by 120 are increasingly limited due to contract
violation, and payment on 440 is regrettably held to
compensate potential resulting reforestation expense loss,
hopefully there will be none.
thereafter continued working on the Nevada 411 tract,
preparing sixty-five acres of it for reforestation. His
equipment got stuck several times, however, and he ceased
operations on September 7, 2014. Colbey billed Reynolds $
22,450 for the work he did on the Nevada 411 tract.
and Reynolds continued to disagree over the condition of the
Nevada 120 and the Nevada 411 tracts, and Reynoldss
continued threats to withhold payment led Colbey to exercise
his right to terminate the contract. Specifically, at trial,
Colbey testified as follows about the events that ensued
after he ceased operations on the Nevada 411 tract:
Q. After completing [the] sixty-five acres on the 411 or 409
tract, did you express your opinion pretty strongly to Mr.
Reynolds about the condition of the tract being ...