Lancaster v. Rogers Constr., Inc.

2022 Ark. App. 54

640 S.W.3d 662

Tabitha and Ken LANCASTER, Appellants

v.ROGERS CONSTRUCTION, INC., Appellee

No. CV-21-79

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered February 2, 2022

Ashcraft & Associates, by: Cecilia Ashcraft, and G. Christopher Walthall, Malvern, for appellants.

McMillan, McCorkle & Curry, LLP, Arkadelphia, by: F. Thomas Curry, for appellee.

MIKE MURPHY, Judge

This is the third time this case has come before this court. It was dismissed twice, without prejudice, for lack of jurisdiction. Lancaster v. Rogers Constr., Inc. , 2020 Ark. App. 514, 612 S.W.3d 772 ; Lancaster v. Rogers Constr., Inc. , 2019 Ark. App. 582, 2019 WL 6721116. The jurisdictional issues are resolved, and we now consider the case on the merits. Tabitha and Ken Lancaster are appealing the November 28, 2018 order of the Clark County Circuit Court granting the appellee's motion for summary judgment. On appeal they argue that the circuit court misinterpreted the contract and that a genuine issue of material fact remains to be litigated. We affirm.

In April 2006, the Lancasters hired appellee, Rogers Construction, Inc., to design and build a home for them in Arkadelphia. Construction was completed in May 2007. In August 2010, the Lancasters noticed damage to the house: the front door was sinking, there were gaps between the brick and the slab, cracked bricks, cracked sheetrock, and sweating windows. The Lancasters allege that the damage was caused because Rogers did not properly compact the soil or use a monolithic slab for the foundation. They brought suit against Rogers, its general contractors, and its subcontractors for breach of express contract, breach of implied contract, breach of implied warranties, negligence, strict liability in tort, and fraud by misrepresentation or concealment. Rogers moved for summary judgment, and the remaining defendants were eventually dismissed. The only issue before this court is whether the circuit court erred in granting that motion for summary judgment.

Our summary-judgment standard is well settled. Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Nelson v. Ark. Rural Med. Prac. Loan & Scholarship Bd. , 2011 Ark. 491, at 8, 385 S.W.3d 762, 767. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. McGrew v. Farm Bureau Mut. Ins. Co. of Ark. , 371 Ark. 567, 268 S.W.3d 890 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Greenlee v. J.B. Hunt Transp. Servs. , 2009 Ark. 506, 342 S.W.3d 274.

On appellate review, this court determines if summary judgment was appropriate by deciding whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings but also on the affidavits and other documents filed by the parties. Id. As to issues of law presented, our review is de novo. Barrows/Thompson, LLC v. HB Ven II, LP , 2020 Ark. App. 208, at 12–13, 599 S.W.3d 637, 646.

Rogers moved for summary judgment on the basis of a provision in the contract between the parties for the construction of the home. That provision provided that

[o]wner in no way holds Contractor responsible for damage to completed structure resulting from acts of God, including but not limited to, erosion, floods, earthquakes, shifting or settling of ground and other such natural occurrences.

Rogers generally asserted that this precludes the Lancasters from seeking any and all remedies for causes of action associated with damages stemming from the shifting and settling ground.

The Lancasters replied that Rogers may not exonerate itself from its failure to abide by the terms of the contract by way of a force majeure clause and that breach of contract remains actionable. After considering the record and arguments, the circuit court granted summary judgment and dismissed the Lancasters’ entire complaint. In so doing, it reasoned that the undisputed cause of the problems with the house was due to the shifting and settling of the ground, and any damages therefrom were not actionable pursuant to the terms of the contract.

In their brief to this court, the Lancasters make no argument concerning any of the causes of action in their complaint other than the breach-of-contract issue. They do not argue below or to this court how any claim other than breach of contract should have survived summary judgment. Because the Lancasters make no additional arguments concerning their other claims on appeal, they have abandoned those claims. See Durden v. City of Van Buren , 2021 Ark. App. 357, at 4 n.1, 635 S.W.3d 342, 345 n.1 ; see also Crockett v. Essex , 341 Ark. 558, 562, 19 S.W.3d 585, 588 (2000) ("[N]o argument regarding a negligence claim is made in this appeal, and we conclude that the Crocketts have abandoned any claim that summary judgment was erroneously granted for that cause of action as well."). The question then is should the breach-of-contract claim—and only the breach-of-contract claim—have survived summary judgment.

To succeed on a breach-of-contract claim, a plaintiff must show (1) the existence of a contract, (2) an obligation on the part of the defendant under the contract, (3) a failure to perform the obligation, and (4) resulting damages. Barrows/Thompson, LLC , 2020 Ark. App. 208, at 15, 599 S.W.3d at 647.

The Lancasters first assert that they contracted with Rogers for a monolithic slab, which they did not receive. In support, they point to the deposed testimony of their expert, Craig Evan, an engineer. As abstracted, Evans said that

the brick veneer had several diagonal settlement cracks around the front of the house. When I say "settlement cracks" that typically means moving downward in engineering profession. I am telling you that those cracks could be caused by the building moving down but also could be expansive soil. When it dries out, it shrinks; when it gets wet, it expands. So it is movement in the foundation. I cannot always guarantee that it is settlement, but usually when I mention "settlement" it is usually under the assumption it is moving down as opposed to moving up. It is the earth moving. Based on my observations, this house had some very poor soil, plastic soil that had a lot of movement. The settling of the soil caused the house to

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