Taylor v. Richardson

• Decision Date: 10 September 1979
• Docket Number: No. 2,No. 78-320,78-320,2
• Citation: 266 Ark. 447,585 S.W.2d 934
• Parties: Aubrey TAYLOR et ux., Appellants, v. Johnnie RICHARDSON, d/b/a Richardson Construction Company, Appellees
• Court: Arkansas Supreme Court

Page 934

585 S.W.2d 934

266 Ark. 447

Aubrey TAYLOR et ux., Appellants, v. Johnnie RICHARDSON, d/b/a Richardson Construction Company, Appellees.

No. 78-320.

Supreme Court of Arkansas, Division No. 2.

Sept. 10, 1979.

Marquis E. Jones, Jones & Tiller, Little Rock, for appellants.

HOLT, Justice.

Appellee built appellants a "custom" house. Appellants moved into the house on November 16, 1973. Thereafter they commenced this action for breach of contract, alleging that the appellee had refused to correct numerous defects and construction errors. They sought $6,970 damages to "correct the construction errors and defects." Subsequently, they amended their complaint seeking damages in the amount of $9,000 due to "diminution in the value of plaintiff's property." By counterclaim, appellee sought $379 from appellants. The court, sitting as a jury, found that where there are "defects in a building which can be remedied by repair or completing the omissions, the measure of damages is the cost of such repair rather than the difference between the value of the building as constructed and that contracted for." Damages of $166.98 were awarded to appellants for the omissions of certain items in the construction. This award was deemed sufficient to offset the balance found to be due on appellee's counterclaim. For reversal appellants contend that the court erred in its findings of fact and application of the law to the facts presented. The thrust of their argument is that their evidence is "overwhelming" that they are entitled to damages based upon the difference between the value of the building as constructed and the cost contracted for.

We deem it appropriate at this time to call attention to the fact that Arkansas Rules of Civil Procedure, Rule 52, effective July 1, 1979, has altered the standard of review on appeal as to cases tried by a circuit judge, sitting as a jury. That rule provides: "Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." In other words, on appellate review the substantial evidence test will not be applicable to cases tried on or after July 1, 1979.

The case at bar was tried before the effective date of Rule 52. Therefore, the rule applies here that on disputed issues of fact, we are concerned only with whether there is any substantial evidence to support the finding of the court, sitting as a jury. McMillan v. Mueser Material & Equipment Co., Inc., 260 Ark. 422, 541 S.W.2d 911 (1976); and Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W.2d 822 (1968). In determining the sufficiency of the evidence, we review all of the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the court's finding. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W.2d 304 (1975). There we also observed that "we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to him." In Carter v. Quick, 263 Ark. 202, 563 S.W.2d 461 (1978), relied upon by the appellants, it was argued, as here, that the proper measure of damages was the difference in value of the home as erected and its value if it had been constructed according to the contract rather than the cost of replacement and repair. In rejecting this argument, we reiterated:

A substantial compliance by the contractor is all that is required under the law, he being charged (where there is a substantial compliance) with the difference in value between...