598 S.W.3d 853
Ark. Ct. App.2020Background
- Goodwin & Goodwin (general contractor) subcontracted Summers Drilling & Blasting (SD&B) to drill/blast for a sewer relocation on a highway project at $181/linear foot with a 1,350-ft minimum.
- SD&B blasted portions of the line, invoiced $279,283 total; Goodwin paid $185,235.40 and withheld later invoices after discovering blasted areas were not to required depth.
- Goodwin completed the deficient work (renting equipment and hammering rock), sued SD&B for breach of contract alleging failure to blast to project-plan depths and abandonment.
- Trial court found an enforceable contract (incorporating project plans), that SD&B failed to blast to grade and left before completion, and awarded Goodwin $132,792.26 in damages plus costs and fees.
- SD&B appealed, arguing (1) the claim sounded in tort not contract, (2) no breach proved (depth/distance), and (3) damages calculation was unsupported. The appellate court affirmed liability but reversed and remanded on damages for recalculation.
Issues
| Issue | Goodwin's Argument | SD&B's Argument | Held |
|---|---|---|---|
| Whether the claim sounds in contract or tort | Complaint alleges failure to perform per the subcontract and project specifications—so contract | Claim is really for deficient performance/negligence, not breach of a specific contractual promise | Contractual: complaint pleads existence of agreement, specific obligation (perform to project specs), breach, and damages; claim sounds in contract |
| Whether SD&B breached depth obligations | Contract incorporated AHTD/City project plans specifying depths; SD&B had notice/visited site and thus was bound to blast to grade | Written bid was silent on depth; no express depth term in bid so no breach | Breach: parol evidence admissible to fill silence; factfinder credited evidence that SD&B failed to reach grade and thus breached |
| Whether SD&B breached distance/minimum obligations or merely met the 1,350-ft minimum | Goodwin asserted SD&B left before completing the project and did not blast required portions | SD&B said it met the 1,350-ft contractual minimum and thus did not breach as to distance | Court found SD&B left before completion; SD&B did not challenge that finding on appeal, so the court’s factual finding stands |
| Damages calculation and offsets (including unpaid invoices) | Damages measured as cost to complete minus amount owed to SD&B under the contract; Goodwin sought equipment rental, crews, and hammering hours | SD&B contended court’s dollar calculation was unsupported and that unpaid invoices must offset any award | Remand: appellate court agreed measure of damages was correct but reversed because the court’s computation lacked an evidentiary basis and must be recalculated (including consideration of credits for unpaid invoices) |
Key Cases Cited
- Barnes v. Wagoner, 573 S.W.3d 594 (Ark. Ct. App.) (standard of review for civil bench trials)
- Sturgis v. Skokos, 977 S.W.2d 217 (Ark. 1998) (distinguishing tort from contract; need for specific contractual promise)
- McQuay v. Guntharp, 963 S.W.2d 583 (Ark. 1998) (pleading governs characterization of claim)
- Rabalaias v. Barnett, 683 S.W.2d 919 (Ark. 1985) (elements of breach of contract)
- Keith Capps Landscaping & Excavation, Inc. v. Van Horn Constr., Inc., 448 S.W.3d 207 (Ark. Ct. App.) (proper measure of damages in construction-contract breaches)
- MDH Builders, Inc. v. Nabholz Constr. Corp., 17 S.W.3d 97 (Ark. Ct. App.) (damages principles for construction-contract breaches)