Acker Construction, LLC v. Tran
396 S.W.3d 279
Ark. Ct. App.2012Background
- Acker Construction, LLC appeals a Scott County Circuit Court judgment for Hanh Billy Tran awarding $68,307 for cost of repairing seven chicken houses and lost profits due to delays.
- Contracts in 2005 separate four-house and three-house projects; both contracts barred consequential damages for defects.
- Tran acquired the contract interest by assignment and withheld final payments, triggering litigation.
- Acker hired Clinton Holland as a consulting expert; Holland prepared a repair estimate of $34,716.15 but was not called as a witness at trial.
- Jury verdict initially showed separate damages: $34,716 for repairs and $33,591 for lost profits, later reflected in a judgment totaling $68,307 payable to Acker with a lien offset.
- Final judgment: Tran awarded $68,307, with $34,716 costs of repairs and $33,591 lost profits; lien voided; interest at 6% from judgment date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Holland testimony | Tran; Holland’s expert testimony was properly admitted under exceptional circumstances. | Acker; Rule 26(b)(4)(B) privileged; no exceptional circumstance to disclose. | No abuse; Holland testimony allowed under exceptional circumstances. |
| Lost-profit damages sufficiency | Tran; lost profits were natural, proximate, not speculative, based on four-houses-first agreement. | Acker; lost profits are speculative and not within tacit agreement. | Substantial evidence supports lost-profits damages; not purely speculative. |
| New trial/JNOV regarding cost of repairs | Tran; verdict properly reflects damages; no error in denial of new trial. | Acker; verdict misstates damages and overvalues repairs, warranting new trial. | Court did not abuse discretion; verdict supported by evidence. |
| Admission of settlement-negotiation letters (Rule 408) | Acker sought to introduce letters to impeach or show settlement posture. | Rule 408 bars such evidence for liability/amount of claim. | Trial court did not abuse discretion; letters excluded under Rule 408. |
Key Cases Cited
- Richardson v. Union Pac. R.R. Co., 2011 Ark. App. 562 (Ark. App. 2011) (discretion in evidentiary rulings and discovery under Rule 26)
- Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191 (Ark. 2008) (contract interpretation and intent; questions of fact)
- Cobren v. Anderson, 2011 Ark. App. 477 (Ark. App. 2011) (contract formation and intent; questions of fact rest with jury)
- Deck House, Inc. v. Link, 98 Ark. App. 17, 249 S.W.3d 817 (Ark. App. 2007) (measures for damages in contract cases)
- Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730 (Ark. App. 1982) (Rule 408 and settlement-negotiation evidence limits)
- Ozark Auto Transp., Inc. v. Starkey, 327 Ark. 227, 937 S.W.2d 175 (Ark. 1997) (application of Rule 408; discretion in evidentiary rulings)
- Spann v. Smith, not provided in text (not provided) (lost profits may be proven with reasonable certainty)