                                Cite as 2014 Ark. App. 705

                 ARKANSAS COURT OF APPEALS
                                     DIVISION III
                                     No. CV-14-179


                                                Opinion Delivered   DECEMBER 10, 2014
JAMES WASHINGTON d/b/a
WASHINGTON REPAIR SERVICE                       APPEAL FROM THE PULASKI
                    APPELLANT                   COUNTY CIRCUIT COURT,
                                                SECOND DIVISION
V.                                              [NO. 60CV-12-5991]

                                                HONORABLE CHRISTOPHER
KINGRIDGE ENTERPRISES, INC.                     CHARLES PIAZZA, JUDGE
                     APPELLEE
                                                AFFIRMED



                              KENNETH S. HIXSON, Judge


       Appellant James Washington d/b/a Washington Repair Service (“Washington”)

appeals the October 31, 2013 judgment entered against him and in favor of appellee

Kingridge Enterprises, Inc. (“Kingridge”), following a bench trial on competing breach-of-

contract claims. Washington appeals the trial court’s findings that Kingridge prevailed on

breach of contract and that Kingridge was entitled to a $5500 attorney-fee award. We affirm

the trial court’s judgment.

       As part of a renovation project, Kingridge hired Washington to install heating-

ventilation-and-air-conditioning (HVAC) units and duct work in a commercial building

located on Broadway Street in Little Rock. The parties executed a written contract in

October 2012, in which Washington agreed to provide all material, labor, and permits, and

to complete the job in a timely and workmanlike fashion for a contract price of $17,500. The
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contract was not completed on time or in accordance with the written terms. In December

2012, Kingridge filed suit in Pulaski County Circuit Court for breach of contract and replevin

of certain materials purchased by Kingridge but in the possession of Washington. In February

2013, Washington counterclaimed for breach of contract for Kingridge’s failure to pay for the

labor he invested on the job. Although Washington resisted the replevin claim, in March

2013, the trial court ordered Washington to return the HVAC equipment purchased by

Kingridge. In April 2013, Washington filed another breach-of-contract claim alleging that

Kingridge failed to pay the entire contract price of $17,500.

       After the September 2013 bench trial, the trial judge concluded that Kingridge

sustained $2262 in damages, offset by Washington’s entitlement to $1000 for unpaid labor.

The result was a net judgment in Kingridge’s favor of $1262. The trial court awarded

Kingridge $215 in costs and $5500 in attorney fees. Washington appeals, arguing that the trial

court erred (1) by not finding that Kingridge waived any breach by continuing to accept

Washington’s work after the initial alleged breaches; (2) by not finding that Kingridge was

guilty of the first material breach of contract; and (3) by awarding attorney fees to Kingridge

instead of Washington, or alternatively, by improperly awarding attorney fees that were not

reasonable or supported by the evidence.

       In review of a bench trial, we determine whether the trial court’s findings were clearly

erroneous or clearly against the preponderance of the evidence. Bowen v. Gardner, 2013 Ark.

App. 52, 425 S.W.3d 875. Disputed facts and determinations of credibility of the witnesses

are within the province of the fact-finder. Id. A trial court’s conclusions of law, however,


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are reviewed de novo and are given no deference on appeal. Id. A prevailing party in a

breach-of-contract action is permitted to seek attorney fees. See Ark. Code Ann. § 16-22-308

(Repl. 1999). The standard of review for an attorney-fee award is abuse of discretion. Farm

Bureau Cas. Ins. Co. v. Krouse, 2010 Ark. App. 493, 375 S.W.3d 763.

       To place these arguments in context, we examine the evidence presented at trial in

greater detail. Kingridge was renovating a commercial building. Washington submitted a bid

to install new four-ton and five-ton package HVAC units with duct work, and to repair old

duct work, for $17,500. Kingridge accepted the bid, and the parties entered into a detailed

four-page-typed contract on October 23, 2012.           The contract provided in part that

Washington had reviewed Kingridge’s city-approved architectural plans and specifications, and

Washington agreed to “furnish all material, equipment and perform all labor necessary to

complete” the HVAC “modifications, relocation(s) and installations per the Plans.” The

contract attached, as exhibits, Washington’s one-page proposal bid, as well as Kingridge’s

architectural plans and specifications. In the contract, the parties agreed that “time is of the

essence” and that the work was to be “substantially completed on or before” November 26,

2012. The agreed price was to be paid in percentage installments (35%, 40%, and 25%)

triggered by defined periods of satisfactory progress on the job. Washington agreed to

complete the job “in a workmanship like manner and in compliance with all building codes

and other applicable laws” and agreed to obtain at his own expense “all permits necessary for

the work to be performed.”




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       Work commenced in early November. Almost immediately, Washington informed

Kingridge that he was financially unable to purchase the HVAC materials or a city permit

required for the project. Consequently, Kingridge purchased the HVAC systems, purportedly

costing in excess of $6700. Kingridge also paid $183 for a necessary city permit. On

November 13, Washington asked for and received a loan of $400 from Kingridge.

Washington signed an interest-bearing promissory note to ensure repayment, which was

anticipated to be repaid out of his earnings on this job. The job was not completed by

November 26, and attempts to resolve the problems were unsuccessful, so Kingridge

terminated the contract. Kingridge contended that Washington’s work was not satisfactory

at any point along the project and that Washington refused to work out a mutually agreeable

solution. Washington countered that Kingridge was responsible for several of the problems,

refused to allow him to complete the job, and failed to pay for his labor.

       After the contract had been terminated, Washington refused to deliver the HVAC

units to Kingridge. In December 2012, Kingridge sued Washington for return of the

HVAC equipment it had purchased (the replevin action), for breach-of-contract damages

that included the additional costs to get the job completed in a satisfactory manner, and

for “additional administrative costs” of $2500. Kingridge also asked for court costs and

attorney fees. Washington resisted the breach-of-contract and replevin claims. In February

2013, Washington filed a counterclaim alleging that Kingridge was the party that breached

the contract and sought payment of $5543.66 for “the work that was completed prior to

[Kingridge’s] breach.” Washington also asked for court costs and attorney fees.


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       The court held a hearing on the replevin cause of action in March 2013, and the

trial judge ordered Washington to immediately deliver the specifically described HVAC

equipment to Kingridge. Shortly after the order for delivery, in April 2013, Washington filed

another counterclaim for breach of contract, seeking the full $17,500 contract price, plus his

costs and attorney fees.

       Following discovery, a bench trial was conducted in September 2013, at the conclusion

of which the circuit judge announced his decision from the bench. The judge considered the

testimony of several witnesses, one of whom was Washington, as well as multiple documents

entered into evidence. The judge disallowed Kingridge the $2500 in administrative costs it

sought, but he awarded Kingridge damages in the amount of the difference between the

contract price and what it cost Kingridge to have the job completed, which totaled $2262.

The judge then awarded Washington $1000 for the value of his labor. This computed to a

net judgment of $1262 in Kingridge’s favor. The judge then announced that he would award

a reasonable attorney fee to Kingridge. The judgment entered in favor of Kingridge included

damages of $1262, costs of $215, and attorney fees in the amount of $5500. Washington filed

a timely notice of appeal.

       Appellant’s first two points on appeal are so closely related that they will be considered

together. Washington concedes that the contract required him to pay for the permit and the

equipment, which he did not do. Washington argues that because Kingridge paid for its own

equipment and permit (which were obviously breaches of the agreement), Kingridge waived

its right to enforce the contract against Washington. He cites to Clear Creek Oil & Gas Co.


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v. Brunk, 160 Ark. 574, 255 S.W. 7 (1923), Stephens v. West Pontiac-GMC, Inc., 7 Ark. App.

275, 647 S.W.2d 492 (1983), and Southern Pipe Coating, Inc. v. Spear & Wood, Mfg. Co., 235

Ark. 1021, 363 S.W.2d 912 (1963), as support for this argument. Washington also argues that

Kingridge was the materially breaching party that terminated the contract by not allowing him

to finish, entitling him to recover on his breach-of-contract claim, citing to Southern Pipe

Coating, supra. We disagree that the trial court clearly erred.

       A material breach of a contract occurs when there is a failure to perform an essential

term or condition that substantially defeats the purpose of the contract for the other party.

Spann v. Lovett & Co., Ltd., 2012 Ark. App. 107, 389 S.W.3d 77; Roberts Contracting Co. v.

Valentine-Wooten Rd. Pub. Facility Bd., 2009 Ark. App. 437, 320 S.W.3d 1. An influential

circumstance in determining whether a breach is material is the extent to which the injured

party will obtain the substantial benefit that he reasonably anticipated. Boellner v. Clinical

Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745.

       While Kingridge allowed Washington to continue to provide labor after it purchased

the HVAC materials and permit, the material breach was Washington’s failure to provide

competent workmanship in a timely fashion that complied with city codes and the renovation

plans. Kingridge was compensated for the cost to complete the contract after Washington’s

breach. Washington was compensated for the reasonable value of labor provided before

termination of the contract. These were questions of fact pertaining to whether the breaches

were material and when they occurred. We hold that the trial court’s factual findings are not

clearly erroneous. We affirm on the first two points on appeal.


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       Lastly, Washington contends that the trial court erred in awarding attorney fees because

(1) he (Washington) should have prevailed on points one and two above, and (2) even if fees

were permissible, there is no evidence to substantiate the attorney fees or any discussion of the

many factors to be considered by a trial court pursuant to Chrisco v. Sun Industries, Inc., 304

Ark. 227, 800 S.W.2d 717 (1990). We dispose of Washington’s first argument by affirming

the judgment in favor of Kingridge. We dispose of Washington’s second argument without

reaching the merits because Washington has not preserved the issue for appellate review.

       Typically, the prevailing party files a posttrial motion for attorney fees under the

procedure set forth in Arkansas Rule of Civil Procedure 54(e). In this case, however, no

posttrial Rule 54(e) motion was filed. The trial judge announced from the bench that he

would award a reasonable attorney fee to Kingridge, asking Kingridge’s attorney to prepare

the precedent. Washington did not object. A few weeks later, judgment was filed, reciting

a $5500 attorney-fee award. Washington did not file any posttrial motion objecting to the

fees, before or after judgment was filed, and instead filed a notice of appeal from the

judgment.

       To preserve the issue of attorney fees for review on appeal, an appellant must raise the

issue to the trial court “at least by filing a motion to amend the judgment pursuant to Rule

52(b).” Farm Bureau Mut. Ins. Co. of Ark. v. David, 324 Ark. 387, 393–94, 921 S.W.2d 930,

933 (1996). Likewise, in Zhan v. Sherman, 323 Ark. 172, 913 S.W.2d 776 (1996), our

supreme court rejected Zhan’s challenge on appeal to the trial court’s award of court costs to

Sherman on the basis that Zhan failed to preserve it for appellate review. The Zhan court


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held that if Zhan believed the trial court to have erred in awarding costs, Zhan should have

raised the issue to the trial court by means of a postjudgment motion under Arkansas Rule of

Civil Procedure 52. Zhan, 323 Ark. at 177, 913 S.W.2d at 779. See also Turner v. Brandt, 100

Ark. App. 350, 353, 268 S.W.3d 924, 925–26 (2007) (holding attorney-fee issue waived on

appeal for failure to raise the issue to the trial court, “perhaps via a motion to amend the

judgment pursuant to Arkansas Rule of Civil Procedure 52(b)”). Here, Washington generally

denied that Kingridge was entitled to attorney fees in his answer, but he failed to object or

make any record before the trial court, as required by our appellate courts. Accordingly, we

do not address the merits of that issue.

       Affirmed.

       HARRISON and WOOD, JJ., agree.

       Wallace, Martin, Duke & Russell PLLC, by: Dale B. Duke, for appellant.

       Stuart Law Firm, P.A., by: Ginger M. Stuart, for appellee.




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