Jocon, Inc. v. Hoover, CA
| Decision Date | 25 February 1998 |
| Docket Number | No. CA,CA |
| Citation | 61 Ark.App. 10,964 S.W.2d 213 |
| Parties | JOCON, INC., Appellant, v. Paul HOOVER, Jr., and Dan Robinson, Jr., Appellees. 97-732. |
| Court | Arkansas Court of Appeals |
Floyd A. Healy, Little Rock, for Appellant.
Robert M. Cearley, Jr., Little Rock, for Appellee.
This case involves an initial construction contract, a breach of that contract, a second contract concerning the repair of a parking lot that was built pursuant to the initial contract, the breach of the second contract, and the amount of money that the non-breaching party is entitled to recover as damages. Appellant Jocon, Inc., a corporation engaged in the construction business as a contractor, appeals the Pulaski County Circuit Court's judgment in which the court awarded appellees, Paul Hoover, Jr., and Dan Robinson, Jr., damages of $7,611.71 and attorney's fees for the breach of a construction contract and as a consequence of appellant's breach of a subsequent contract to repair the damaged and deteriorated portions of a parking lot that appellant had previously constructed on commercial property owned by appellees. We affirm the circuit court's judgment as modified.
In February 1995, appellant and appellees entered into a contract whereby appellant agreed to construct a warehouse and parking lot on property owned by appellees in return for a payment of $108,491. After appellant completed construction of the warehouse and the parking lot, problems developed with the part of the parking lot where a dumpster was situated. In this area, the asphalt used to construct the parking lot began to deteriorate, and this area was damaged by heavy trucks driving to and from the dumpster.
Because of these problems with the parking lot, appellees retained $2,519.10 of the $108,491 that was due to appellant under the original contract. On May 13, 1996, the parties entered into a second contract. This second contract had to do with repair of the deterioration and damage to the parking lot. Pursuant to the provisions of this agreement, appellant agreed to provide the equipment and labor necessary to repair the parking lot and appellees agreed to pay for all the materials necessary to complete the repairs. Appellant began repair of the parking lot by subcontracting with an excavation contractor, who used a bulldozer and backhoe to excavate to a depth of approximately two feet in the damaged areas of the parking lot. At this point, appellant was to fill in the excavated area with gravel and then pave over the gravel with asphalt. However, appellant did not do any further repair work on the damaged areas of the parking lot. Appellees completed the repair work and incurred $10,130.81 in expenses.
In January 1996, appellant filed suit against appellees in order to recover the payment that appellees owed on the initial construction contract, which appellant alleged was $5,000. Appellees filed an answer in which they denied that they owed appellant any money in connection with the initial contract. Appellees also filed a counterclaim in which they alleged that appellant had breached the February 1995 contract and that they were entitled to damages in an amount to be proven at trial. However, during pretrial discovery, appellees admitted, in response to appellant's request for admissions, that they had retained $5,000 of the payment they owed appellant on the initial construction contract.
Appellant brings four allegations of error. According to appellant, the circuit court erred in finding that appellees had retained $2,519.10 of the amount that they owed appellant pursuant to the initial contract and erred further in determining appellees' damages by subtracting this figure from appellees' total cost to repair the parking lot. Appellant also asserts that the circuit court erred in finding that it breached the May 13, 1996, contract whereby it agreed to provide the equipment and labor to repair the deteriorated and damaged areas of the parking lot. Appellant also maintains that the circuit court erred in determining that the damages appellees were entitled to after they completed the repair of the parking lot included the cost of the materials used to make the repairs. Finally, appellant asserts that the circuit court erred in awarding appellees attorney's fees of $3,500.
For its first allegation of error, appellant asserts that the circuit court erred in determining the amount of damages to which appellees were entitled. The circuit court found that appellees were entitled to damages of $7,611.71. The court arrived at this figure by deducting from appellees' total expenditure to complete the repair of the damaged and deteriorated portions of the parking lot, which was $10,130.81, the amount of money that appellees retained from the payment they owed appellant on the initial construction contract, which the parties had entered into in February 1995. The circuit court found that the appellees had retained $2,519.10 of the amount that they owed appellant pursuant to the initial construction contract. The circuit court found that the appellee were entitled to damages of $7,611.71, which is the remainder of $10,130.81 minus $2,519.10.
Appellant asserts that the trial court's calculation of appellees' damages is in error in that the circuit court should have subtracted from $10,130.81, the appellees' total cost to repair the parking lot, $5,000, rather than $2,519.10. Appellant maintains that the circuit court should have determined appellees' damages by subtracting $5,000 because this was the amount that the appellees retained from the payment they owed appellant on the initial contract. Appellant asserts that the appellees retained $5,000, not $2,519.10, because appellees admitted, in their response to appellant's request for admissions made pursuant to Arkansas Rule of Civil Procedure 36(a), that they had withheld $5,000 of the amount they owed appellant on the initial construction contract. The request for admission and response that appellant relies on are as follows:
Please admit that the [appellees] withheld the sum of $5,000.00 on the contract.
Admitted, due to the fact that it appeared that parking areas were failing and that defective work and defective materials were causing the failure.
At trial, appellee Hoover testified that although appellees had admitted in pretrial discovery that they had retained $5,000 from the payment they owed appellant on the initial contract, this admission was a mistake and that they had retained only $2,519.10. However, Hoover acknowledged that he was "standing by that mistake."
Furthermore, during the trial appellees' counsel objected to a characterization by appellant's counsel that the parties had stipulated that the balance owed appellant by appellees on the original contract was $5,000. But after appellant's counsel read appellees' response to appellant's request for admission that $5,000 was withheld from the contract, appellees' counsel, Mr. Cearley, stated: Appellant's position at trial, and on appeal, is that appellees were bound by their response to appellant's request for admissions that they had withheld $5,000 of the payment they owed appellant on the initial construction contract. Appellant bases this argument on the following provision of Arkansas Rule of Civil Procedure 36(b): "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission."
Appellant is correct in maintaining that this admission was conclusive because there was no motion seeking, or order granting, a withdrawal or amendment of the admission. Consequently, we conclude that the circuit court erred in crediting only $2,519.10 against appellees' damages, rather than $5,000. The judgment of the trial court should be modified accordingly.
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