{
  "id": 1709245,
  "name": "ODELL WEBB BUILDERS, INC. v. Faye AVINGTON",
  "name_abbreviation": "Odell Webb Builders, Inc. v. Avington",
  "decision_date": "1980-08-27",
  "docket_number": "CA 80-132",
  "first_page": "68",
  "last_page": "72",
  "citations": [
    {
      "type": "official",
      "cite": "270 Ark. 68"
    },
    {
      "type": "parallel",
      "cite": "603 S.W.2d 440"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "250 Ark. 1130",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1636958
      ],
      "weight": 2,
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/ark/250/1130-01"
      ]
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  "last_updated": "2023-07-14T16:40:39.197564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ODELL WEBB BUILDERS, INC. v. Faye AVINGTON"
    ],
    "opinions": [
      {
        "text": "George Howard, Jr., Judge.\nThis is an appeal from a chancery court decree awarding appellant $11,850.00, the balance due under a construction contract, but allowing appellee set-offs of $9,800.00 for defective workmanship.\nOn March 23, 1978, appellant agreed to construct a dwelling house for appellee, in accordance with certain plans and specifications, for $32,350.00, which included the cost of materials and labor.\nAppellee was advised in August, 1978, that the structure was ready for occupancy, but appellee refused to pay the balance due contending that the structure was defective, among other things, in the following particulars: (a) the brickwork was not performed in a workmanship manner, (b) the roof contained swags, (c) the water pressure was extremely low and (d) that the plumbing was defective causing water leakage from the foundation, and elsewhere.\nAppellant instituted his action seeking recovery of the unpaid balance under the contract or in the alternative, a materialmen\u2019s lien for $5,870.34.\nAppellee filed her answer and counterclaim for $26,-000.00 for the damages sustained because of poor workmanship.\nThe trial court awarded appellant a judgment for $11,-850.00, but found that appellee was entitled to the following set-offs:\n1. $4,500.00 to correct the plumbing defects;\n2. $2,800.00 to rebrick the house;\n3. $1,500.00 to replace the floor covering;\n4. $500.00 to repair the swags in the roof; and\n5. $500.00 to replace a gas line connected to the central heating at the proper depths.\nAfter carefully reviewing the record, we are unable to say that the trial court\u2019s findings are clearly erroneous or clearly against the preponderance of the evidence. Nor has the appellant demonstrated that the court\u2019s findings are clearly against the preponderance of the evidence, and we, accordingly, affirm.\nIn Campbell v. Richardson, 250 Ark. 1130, 468 S.W. 2d 248 (1971), the Arkansas Supreme Court reemphasized that while an appeal from a chancery court is reviewed de novo, the decision of the chancellor will be affirmed unless it is clearly against the preponderance of the evidence.\nRule 52 of the Rules of Civil Procedure, which became' effective July 1, 1979, provides in relevant part:'\n\u201c. . . 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. . . .\u201d\nAfter the foundation for appellee\u2019s house had been laid-, appellant\u2019s bricklayer, Buddy Lemons, was replaced- by one Russell Furr to finish all of the brickwork. While both parties agree that the brickwork was performed in a substandard manner, neither accepts responsibility for the employment of Mr. Furr. Appellant contends that the appellee procured Mr. Furr to complete the brickwork. On the other hand, appellee contends that after appellant advised her that Buddy Lemons was unable to complete the job because he \u201cwas tied up\u201d, appellant asked appellee is she knew anyone \u201cthat laid brick.\u201d Appellee testified that she simply supplied a list of names of bricklayers, including the name of Mr. Furr, whom she knew from which appellant could select a replacement and denied that she had hired Mr. Furr.\nIt is plain that the trial court was presented a fact question in seeking to determine who hired Mr-Furr. It is clear that the appellant agreed to supply and supervise the labor. Moreover, it is undisputed that appellant paid the wages due Mr. Furr for the brickwork. We are not persuaded that the conclusion of the trial court that Mr. Furr was engaged by appellant is clearly against a preponderance of the evidence.\nButch McCallum, a building contractor and a witness called for appellee, estimated the cost for remedying the defects as: $6,000.00 for repairing the plumbing defects; $6,-000.00 for replacing the bricks; $3,000.00 for replacing the floor covering; and $1,000.00 for miscellaneous work.\nCalvin Efrid, a licensed plumber who performed the initial plumbing, testified that if he were required to replumb the entire house by going overhead, he could make the repairs for $1,500.00.\nAppellant estimated the cost involved as $2,000.00 to remedy the brickwork, $1,000.00 to install new plumbing overhead and $1,900.00 for extra fixtures.\nWe hold that the trial court was confronted with a fact question in seeking to determine the necessary costs involved in repairing the defects to appellee\u2019s house. The testimony regarding the essential costs involved is conflicting, to say the very least. It is well settled that it is the prerogative of the trial court to determine credibility and resolve conflicts in the testimony. Moreover, the record reflects that the trial court made a personal inspection of the premises and we are unable to state that his findings are clearly against the preponderance of the evidence.\nFinally, appellant and his witnesses testified that while it is unknown what is actually causing the water leaks around the foundation of appellee\u2019s house, the evidence adduced in its behalf absolves appellant of any inferior workmanship in the installation of the copper tubing before the concrete foundation was poured; and that the testimony of its witness, Calvin Efrid, that in his opinion the water leaks are attributable to a frozen water line behind the kitchen sink that was exposed to outside atmosphere relieves appellant of any responsibility for the leaks.\nOn the other hand, Harold Shepherd, President of Arkadelphia Plumbing and Heating Company, testified that while it was impossible to tell what caused the leakage under the concrete foundation, it was his opinion that the leaks were either due to loose joints in the copper tubing or the tubing was damaged prior to the pouring of the concrete foundation. Again, the trial court was faced with a fact question and we are unable to say that the trial court\u2019s findings that appellant is responsible for the defects is not clearly supported by a preponderance of the evidence.\nAffirmed.",
        "type": "majority",
        "author": "George Howard, Jr., Judge."
      }
    ],
    "attorneys": [
      "Donald M. Spears, for appellant.",
      "Arnold & DeMott, by: W. H. (Dub) Arnold, for appellee."
    ],
    "corrections": "",
    "head_matter": "ODELL WEBB BUILDERS, INC. v. Faye AVINGTON\nCA 80-132\n603 S.W. 2d 440\nCourt of Appeals of Arkansas\nOpinion delivered August 27, 1980\nDonald M. Spears, for appellant.\nArnold & DeMott, by: W. H. (Dub) Arnold, for appellee."
  },
  "file_name": "0068-01",
  "first_page_order": 94,
  "last_page_order": 98
}