Thornsberry v. Smith

• Decision Date: 25 October 2006
• Docket Number: No. CV-98-13,CA06-280,CV-98-13
• Parties: WILLIAM THORNSBERRY, d/b/a THORNSBERRY CONSTRUCTION, APPELLANT v. EDWIN L. SMITH and NOVA ARENE SMITH, Husband and Wife, APPELLEES
• Court: Arkansas Court of Appeals

WILLIAM THORNSBERRY, d/b/a THORNSBERRY CONSTRUCTION, APPELLANT

v.EDWIN L. SMITH and NOVA ARENE SMITH, Husband and Wife, APPELLEES

CA06-280

No. CV-98-13

Arkansas Court Of Appeals

October 25, 2006

DIVISION IV

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, Judge

AN APPEAL FROM POPE COUNTY CIRCUIT COURT

HONORABLE JOHN S. PATTERSON, CIRCUIT JUDGE AFFIRMED

AppellantWilliam Thornsberry appeals from the judgment of the Pope County Circuit Court awarding appellees Edwin and Nova Smith $30,390 in damages and $15,000 in attorney's fees.¹The trial court found that Thornsberry, a contractor, was negligent in the construction of the Smiths' home and that he breached an express warranty.Thornsberry raises three point for reversal.We affirm.

The Smiths were living in Pennsylvania in 1997 and decided to retire to Pope County, Arkansas.They hired Thornsberry to build a house on land they had purchased in 1995 or 1996.Mrs. Smith's sister and brother-in-law lived in the Pope County area and assisted in dealing with Thornsberry during the construction of the home while the Smiths were livingin Pennsylvania.After moving into the home on March 1, 1997, the Smiths discovered numerous problems with the house.

The Smiths filed suit against Thornsberry on January 14, 1998, alleging breach of the implied warranty of habitability in connection with the construction of the home.They later amended their complaint to include a claim for negligence.Thornsberry denied the material allegations of the complaint.

Jerry Hudlow, the brother-in-law, testified that the Smiths decided to hire Thornsberry due to his friendship with Thornsberry and because Thornsberry submitted the low bid.Hudlow said that he was given power of attorney to assist in the construction and that he acted as the Smiths' "eyes and ears" during the construction process.He said that, before the footings were poured, Thornsberry indicated that there was a problem with the soil but went ahead and poured the footings and advised him that the problem was resolved.Hudlow testified that there were problems with water under the house, with the quality of paint on the interior of the house, and with the siding and brick.Hudlow testified that, as the house neared completion, he talked to Thornsberry about the problems and about whether the Smiths should purchase a commercial warranty.According to Hudlow, Thornsberry stated that he guaranteed the house for one year and that most problems would develop within the first year, so there was no need to purchase a commercial warranty.

Thornsberry testified that he told Jerry Hudlow that he was not a builder per se but that he got houses built.He denied making the statement that he would guarantee the construction for a year but agreed with Hudlow's testimony that, at the end of constructionof the home, he and Hudlow discussed purchasing a commercial warranty.He said that he was not trying to talk Hudlow out of buying the warranty.Thornsberry also said that it would be reasonable for the Smiths to look to him to rectify problems with the construction, including the siding.

At the end of the Smiths' case-in-chief and again at the close of the evidence, Thornsberry moved for a directed verdict on the implied warranty of habitability claim.The court took Thornsberry's motion under advisement.In response, the Smiths moved that the pleadings be amended to conform to the evidence presented and requested that the court award damages for breach of express warranty.Thornsberry objected.The trial court ultimately granted the directed verdict on the implied-warranty claim but allowed the pleadings to be amended to include a claim for breach of express warranty.

The trial court issued a letter opinion in which it found that Thornsberry was negligent and had breached an express warranty in building the house on expansive soil, noting that it was Thornsberry's responsibility to see that the house was built on sound footing.The trial court awarded damages of $30,290, after denying certain claims.The Smiths requested their attorney's fees, and the court awarded a fee of $15,000.Judgment was entered in accordance with the court's ruling, and Thornsberry timely filed his notice of appeal.

Thornsberry raises three points for reversal.Insofar as Thornsberry is appealing the judgment, we summarily affirm the trial court's judgment because he addresses only the express-warranty claim and does not challenge the trial court's alternative finding that he wasguilty of negligence.Our courts have held that, where the trial court based its decision on two independent grounds and appellant challenges only one on appeal, the appellate court will affirm without addressing either.SeePugh v. State, 351 Ark. 5, 89 S.W.3d 909(2002);Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941(1989);Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611(1999).However, in order to address the attorney's fee award, we will address the merits of Thornsberry's points.

As his first point, Thornsberry argues that the trial court erred in allowing the amendment to conform the pleadings to the proof after an objection was made.At the close of their case, the Smiths made a motion to conform the pleadings to the proof to include an express-warranty claim.Thornsberry objected to the amendment, but the trial court allowed the amendment.On appeal, Thornsberry argues that this was error because he was denied a fair chance to defend against such a claim.

Arkansas Rule of Civil Procedure 15 governs the amendment of pleadings.Rule 15(b) states in part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion.The court may grant a continuance to enable the objecting party to meet such evidence.

Permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue.Ison Props., LLC v. Wood, 85 Ark. App. 443, 156 S.W.3d 742(2004).We will not reverse a trial court's decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion.Id.Here, the issue of an express warranty was raised when Jerry Hudlow testified that Thornsberry told him that he(Thornsberry) would stand behind his work for one year.Hudlow said that the statement occurred in a...