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Reynolds Forestry Consulting and Real Estate, PLLC v. Colbey

Court of Appeals of Arkansas, Division I

April 10, 2019

REYNOLDS FORESTRY CONSULTING AND REAL ESTATE, PLLC APPELLANT
v.
CHRIS COLBEY D/B/A TIMBERPRO LAND CLEARING APPELLEE

          APPEAL FROM THE NEVADA COUNTY CIRCUIT COURT [NO. 50CV-15-2] HONORABLE DUNCAN CULPEPPER, JUDGE

          Crane & Phillips, P.A., by: Steve R. Crain, for appellant.

          McKenzie, Vasser & Barber, PLLC, by: A. Glenn Vasser; and Wright, Lindsey & Jennings LLP, by: Rodney P. Moore and Michael A. Thompson, for appellee.

          LARRY VAUGHT, JUDGE

         The 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 attorney's fees.

         Reynolds now appeals the circuit court's 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 attorney's fees to Colbey. We find no error and affirm.

         I. Factual Background

         On July 8, 2014, Colbey and Ted Reynolds, the owner of Reynolds Forestry Services, 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.[1] 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."

         Several 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 Colbey's work on the Nevada 440 tract, and Colbey billed Reynolds $44, 716 for the job. [2]

         Following 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, [3] had been sprayed with herbicide and, consequently, would not be ready for site preparation until August 29, 2014.[4]

         Colbey 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.

         Colbey 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 Colbey's work on the Nevada 440 tract to "partially offset anticipated loss in chemical and cuttings due to [Colbey's] damaging actions."

         The 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.

         Colbey 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 Reynolds's 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.

         Colbey 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.

         Colbey and Reynolds continued to disagree over the condition of the Nevada 120 and the Nevada 411 tracts, and Reynolds's 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 unworkable?
A. Yes sir.
Q. What did you tell him?
A. I just told him the tract was too wet to work.
Q. And what was his response about continuing threats to not pay?
A. He said that he wasn't going to pay me for the work that we had completed on other tracts. He was withholding that money ...

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