Arkansas Mechanical Services, Inc. v. Emery Jarrett d/b/a Jarrett Properties et al.

ca03-340

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA03-340

January 28, 2004

 

ARKANSAS MECHANICAL AN APPEAL FROM PULASKI COUNTY

SERVICES, INC. CIRCUIT COURT

APPELLANT [EQ2001-3055]

v.

HONORABLE ALICE GRAY,

EMERY JARRETT d/b/a CIRCUIT JUDGE

JARRETT PROPERTIES, et al.

APPELLEES AFFIRMED

Josephine Linker Hart, Judge

Appellant Arkansas Mechanical Services, Inc. (AMS), has appealed from an order of the Pulaski County Circuit Court denying its request for judgment in the amount of $29,261.20 against Emery Jarrett, d/b/a Jarrett Properties, EYBJ, LLC, Jarrett Property Management EYBJ, LLC, and Jarrett Property Management and Construction Company. The amount requested was the cost of repairs that AMS provided to a coil-and-damper assembly of a cooling tower for a heat-and-air-conditioning system located at a building owned and managed by Mr. Jarrett. We affirm the decision of the circuit court.

Factual and Procedural History

On March 5, 1999, AMS and Jarrett Properties entered into a customized preventive maintenance program (maintenance agreement), which provided:

The Customized Preventive Maintenance Program (CPM) is designed to provide an on-going maintenance program for the building's Environmental Mechanical System. The CPM program will be designed around the customers needs. All services will be directed and scheduled on a regular basis by our own operations staff based on manufacturer's recommendations, equipment location, application, type, run time and contractors own experience. The customer is informed of the program's progress and results on a continuing basis via a detailed service report, presented after each service call for customer's review, approval signature and record.

Contractor will provide the following mechanical services for the building Environmental Mechanical System(s) comprised of the Equipment listed on Schedule A (Inventory of Equipment).

CIRCULATION PUMPS FOR LOOP WATER (30% GLYCOL)

Motor

1. Lubricate Motor Bearings

2. Check for excessive vibration.

Motor Starter

1. Inspect starter coil

2. Check current

Coupling

1. Check for proper alignment and condition

2. Check for wear and shaft security

Housing

1. Check packing and mechanical seals for leakage

2. Inspect gaskets for leakage and deterioration

3. Lubricate driven shaft bearings

COOLING TOWER

Motor

1. Lubricate bearings

2. Examine motor mounts

3. Check motor insulation resistance

4. Check for excessive vibration

The maintenance agreement also provided as follows: "In case of any failure to perform its obligations under this Agreement, Contractor's liability is limited to repair or replacement at its option, and such repair or replacement shall be customer's sole remedy." The system broke down after a freeze in December 2000 or January 2001. After Mr. Jarrett contacted AMS, it inspected the system and determined that it would cost $26,799, exclusive of taxes, to repair the system's tower. Mr. Jarrett signed the proposal for the repairs and returned it to AMS. After AMS repaired the system, it sought $29,261.20 from Mr. Jarrett. This amount included $21,723 for "tower repair," $6,076 for "materials," and $1,462.20 for tax.1 After the repairs were made, Mr. Jarrett learned that the repairs to the tower would not have been necessary if the proper level of glycol, which performs the same function as antifreeze, had been present in the system. Mr. Jarrett held AMS responsible for the damage caused by the freeze and refused to pay the invoices.

In June 2001, AMS filed suit for the repairs that it had made. At trial, Mr. Jarrett introduced evidence that, in an October 3, 2000, inspection, AMS's technician discovered that there was no glycol in the system, and that he so indicated on his inspection report. Mr. Jarrett, however, on direct examination testified that he had not received that report and had no knowledge that the system lacked glycol until after the damage had been done and the repairs had been requested. During his examination of Mr. Jarrett, counsel for AMS implied that, because Mr. Jarrett had introduced this service report into evidence, he must have had notice of the report because no discovery had been conducted in preparation for trial. In response, Mr. Jarrett testified that he did not know whether discovery had been obtained.

In a telephone conference on April 24, 2002, the court announced its preliminary findings and stated that the need to make the repairs to the tower had been caused by a lack of glycol in the system. The court also found that, according to the maintenance agreement, AMS had an obligation to inform Mr. Jarrett if the glycol level was deficient. The court requested the parties to direct its attention to that portion of the trial record that concerned Mr. Jarrett's knowledge of the lack of glycol in the system.

After the parties submitted briefs, the court announced its decision in a July 15, 2002, telephone conference, finding that AMS had provided Mr. Jarrett with notice of an insufficient level of glycol in the system through its October 3, 2000, service report. This finding was based upon the court's belief that, because no discovery was conducted, Mr. Jarrett had produced all of the service reports; thus, he had received the October 2000 report.

Before any judgment was entered, however, Mr. Jarrett filed a motion to reconsider the trial court's finding that AMS had provided him with notice of the insufficient level of glycol. Mr. Jarrett pointed out that there was no competent evidence introduced at trial to demonstrate that no discovery was had. The trial court reviewed the testimony again and, in a later telephone conference, found no evidence that discovery had not been conducted. It also found that AMS did not provide notice of the insufficient level of glycol to Mr. Jarrett and that AMS, not Mr. Jarrett, was responsible for making the repairs caused by the freeze.

On October 4, 2002, the circuit court entered an order in which it found:

3. That in January, 2001, Jarrett contacted AMS regarding repair or replacement of the coil and damper assembly of an Evapco Cooling Tower located at lot 1R of the Independence Square Subdivision of the City of Little Rock which had frozen during a recent episode of cold weather. The freeze od [sic] the coil and damper assembly resulted from an inadequate level of glycol in the Evapco Cooling Tower. AMS provided Jarrett with a written estimate of the component parts and service required to replace the frozen and otherwise inoperable mechanical system components and the estimate was approved by Jarrett.

4. That AMS performed the service and installed the component parts to the Evapco Cooling Tower and billed Jarrett for $29,261.20 as agreed between the parties. Jarrett contends that the Maintenance Agreement dated March 5, 1999 obligated AMS to replace the frozen component parts and perform the service to make the repairs at AMS's own expense. After review of the testimony and other evidence, the Court finds that AMS had duty [sic] under the Maintenance Agreement to check the level of glycol in the Evapco Cooling Tower and to inform Jarrett if the glycol level was insufficient to protect the system from a freeze. The Court further finds that AMS did not provide Jarrett with notice of the lack glycol [sic] in the system and that AMS was responsible for making the repairs caused by the freeze.

Standard of Review

The standard that this court applies when reviewing a judgment entered by a circuit court after a bench trial is well established. We will not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003). AMS's First Point on Appeal

AMS makes several arguments in its first point on appeal. It states: "The trial court erred when it determined that a March 5, 1999 maintenance agreement created an exception or excuse to Jarrett's performance of a January 17, 2001 contract for replacement of freeze damaged and old rusted equipment." AMS argues that it performed all of the services that it expressly agreed to perform and that the contract did not require it to check, examine, or otherwise take any action in regard to the level of glycol in the system. AMS also argues that Mr. Jarrett met with his attorney on January 19, 2001, to review the maintenance agreement and that he ordered materials and services from AMS knowing that he did not intend to pay for them. It calls Mr. Jarrett's actions "nothing short of a well-planned fraud on AMS." AMS further points out that Mr. Jarrett admitted that it was his obligation to pay for the replacement of the damper assembly and asserts that the circuit court erred in failing to award it the costs associated with its replacement. Additionally, AMS argues that the circuit court erred in admitting the maintenance agreement into evidence over its parol evidence rule objection. AMS, however, has cited no authority, nor has it made any convincing argument for these assignments of error. Therefore, we do not address them. This court will not consider assignments of error that are unsupported by convincing legal authority or argument. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998).

Construction of the Maintenance Agreement

In its second point on appeal, AMS argues that, assuming without conceding, that parol evidence regarding the maintenance agreement was properly admitted into evidence:

The trial court clearly erred in determining that a March 5, 1999 maintenance agreement between Arkansas Mechanical Services and Jarrett Properties created a duty on the part of Arkansas Mechanical Services to monitor and inform Jarrett Properties of the level of glycol in the cooling water loop of Jarrett Properties' mechanical system.

Therefore, the controlling issue for this point is whether, after considering the parol evidence, the circuit court properly construed the maintenance agreement as requiring AMS to monitor the glycol level and to notify Mr. Jarrett of its findings.

AMS presented evidence that it never considered the maintenance agreement as obligating it to monitor the level of glycol. For example, Larry Williams, an account representative for AMS, testified that the purpose of the heading "CIRCULATION PUMPS FOR LOOP WATER (30% GLYCOL)" was simply to identify the type of system so that the technicians would know that if it were opened, the water could not run off into a drain. Also, Philip Hodges, a service technician for AMS, testified that, although he decided to check the glycol level while he was in the building in October 2000, AMS had no obligation to perform that service. Further, Arthur Delanno, president and general manager of AMS, testified that glycol is never included in a preventative maintenance contract like the one at issue and that the purpose of the heading indicating "30% glycol" was simply to identify the system to prevent technicians from draining antifreeze-laden water into a regular sewer system if the closed water loop had to be opened for service. Also, Bobby Campbell, AMS's original account representative when the maintenance agreement was drafted, testified that he had included the term "30% glycol" in the agreement for identification purposes only.

On the other hand, Mr. Jarrett offered testimony to the contrary that the trial court obviously believed. For example, Mr. Jarrett testified that he believed that the agreement required AMS to maintain the level of glycol at thirty percent or, at least, to notify him if it did not contain that level. As set forth above, the maintenance agreement expressly required AMS to deliver its service reports to Mr. Jarrett. Further, Bud Summers, a heating-and-air-conditioning expert, stated that, in his opinion, the agreement required AMS to maintain a certain level of glycol in the system; he also said that the price paid to AMS supported his opinion. Their testimony is in line with the fact that AMS's technician, Mr. Hodges, had, in fact, checked the glycol on two occasions, including the October 3, 2000, service inspection.

The trial court's construction of the maintenance agreement as requiring AMS to check the glycol level and notify Mr. Jarrett if it was low is not clearly against the preponderance of the evidence, and we affirm on this issue. The meaning of an ambiguous term in a contract is a question of fact for the fact-finder. See First Nat'l Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993).

AMS further argues that, even if it did have an obligation to monitor the glycol level, and, if it failed to perform that obligation, Mr. Jarrett's conduct revealed an implied waiver of AMS's breach on his part. However, because AMS did not obtain a ruling on this argument, we need not address it. Failure to obtain a ruling on an issue constitutes a waiver of that issue, and the appellate court will not consider it on appeal. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).

Performance of the Agreement

In its third point, AMS argues: "The trial court clearly erred in considering Jarrett Properties' `Motion for Reconsideration' and reversing its previous ruling after it had determined that AMS had satisfied the `duty' imposed by the court's interpretation of the March 5, 1999 maintenance agreement." We disagree. When Mr. Jarrett filed his motion for reconsideration, the judgment had not yet been reduced to writing or filed in accordance with Ark. R. Civ. P. 58 and the supreme court's Administrative Order No. 2(b)(2). Until that happens, a judgment or decree is not effective, and the trial court is free to alter its decision upon further consideration of the matter. See SLC, Inc. v. National Bank of Ark., ___ Ark. App. ___, ___ S.W.3d ___ (Jan. 7, 2004); Morrell v. Morrell, 48 Ark. App. 54, 889 S.W.2d 772 (1994). This rule eliminates or reduces disputes between litigants over what a trial court's oral decision entailed. SLC, Inc. v. National Bank of Ark., supra.

AMS further argues: "The trial court clearly erred in allowing Jarrett Properties to proceed with it's [sic] `Motion for Reconsideration' which was, in fact, a motion for new trial." AMS asserts that Jarrett failed to satisfy the requirements of Ark. R. Civ. P. 59(a). Again, we disagree. As discussed above, the trial court was free to reconsider its view of the evidence. Additionally, even if Mr. Jarrett's motion can be considered as a motion for new trial, he established such grounds under Ark. R. Civ. P. 59(a)(6), because the trial court's oral decision was clearly contrary to the preponderance of the evidence.

Affirmed.

Stroud, C.J., and Gladwin, J., agree.

1 AMS also performed a separate repair on the heating system of a building owned by Mr. Jarrett, for which it billed him $4,729.04. At trial, Mr. Jarrett did not deny owing this amount, and the trial court awarded a $4,729.04 judgment to AMS. Although Mr. Jarrett filed a notice of cross-appeal, he has not pursued an appeal from this judgment and has, in fact, satisfied it.