Gwen Morgan v. Ronnie Whorton, Anna Whorton, and Whorton Sand & Gravel

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

GWEN MORGAN

APPELLANT

V.

RONNIE WHORTON, ANNA WHORTON, WHORTON SAND & GRAVEL

APPELLEES

CA04-348

January 5, 2005

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CV-03-49]

HONORABLE DENNIS CHARLES SUTTERFIELD, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellees, Ronnie Whorton, Anna Whorton, and Whorton Sand & Gravel, prevailed in their lawsuit against appellant, Gwen Morgan, in which appellees sought payment for the services they rendered under an oral contract for the clearing of land, the use of a bulldozer, the hauling and supplying of gravel, and the installing of a culvert. On appeal from the decision of the circuit court awarding judgment in favor of appellees, appellant argues that because there was no meeting of the minds, the court erred in finding that the parties entered into two separate oral contracts. Further, appellant contends that because there was not a meeting of the minds between the parties, the court should have only awarded compensation to appellees for the reasonable value of the services provided. We affirm.

At trial, Ronnie Whorton testified that he operated Whorton Sand & Gravel with the assistance of his wife, Anna Whorton. According to him, appellant contacted him about performing services on real property in Pope County. He testified that from August 22 to August 27, 2002, he cleared the land using a trackhoe and a bulldozer and burned a brushpile that was as "big as a house." In describing the agreement he reached with appellant, he testified that he told her that clearing the property would run between $3,000 and $3,500. She told him that she wanted it done for $3,000, and he agreed. She then asked for the brush pile to be burnt, and he told her that it would be a little extra. Anna Whorton corroborated this testimony, testifying that Ronnie Whorton told appellant that clearing the brush would cost $3,000 but that burning and burying the trees and stumps would cost extra. An invoice submitted into evidence showed a request for payment in the amount of $3,625 for this work. According to Ronnie Whorton, appellant also told him that she wanted a barn pad built later. He told appellant that they could do it but that this would be for an additional price.

Ronnie Whorton further testified that on August 27, 2002, after they had cleared the land, appellant told him that she wanted a barn on the west side of the property, and she asked for a pad on which to put a barn. She asked for a price, and he told her that he had not "shot the grade on the property" and that he did not know how much it would cost, but that it would be $65 for each load of shale and $55 an hour for the bulldozer, with the price depending on materials and labor. His son, Tommy Whorton, also testified that she asked about the price of materials, and he told her he could not give a definite amount. According to Ronnie Whorton, she then told him that she wanted a gravel driveway so that she could park her trailer to the side of the barn in front of the new pad. She also requested a culvert for a ditch.

Ronnie Whorton testified that he performed these services from August 28 to August 31, 2002. The pad was forty-by-eighty feet, and the driveway was eighty feet. Because it took longer than expected, he only charged appellant $50 an hour for use of the bulldozer.

He stated, and a second invoice submitted into evidence indicated, that he used the bulldozer for twenty-seven hours for $1,350 and the trackhoe for five hours for $375, that he hauled thirty-six loads of shale at $65 for each load for a total of $2,340 and five loads of gravel for $725, and that he charged $150 for the culvert. The total price for the work from August 27 to August 31 was shown on the invoice as $4,940. The total of the two invoices was $8,565. He requested payment from appellant, and she refused to pay, asserting that she had agreed to pay only $3,000 for the work. Appellees then brought legal action to collect the debt.

Following the hearing the court entered a judgment in favor of appellees for $8,565 plus court costs and attorney fees. The court found that the work was performed in two stages: first, the clearing of the land, and second, the construction of a foundation pad for a barn. The court further found that the parties did not agree on a fixed total price for all of the work to be done, but agreed to $55 an hour for the bulldozer and machinery work plus the cost of materials. He further found that appellees performed the work pursuant to the parties' agreement by clearing the land, using a bulldozer, hauling and spreading gravel, and installing a culvert. He further found credible the testimony of appellees' witnesses regarding the amount, quality, and reasonableness of the price for the work done by appellees on the property.

On appeal, appellant argues that the court "erred in finding the parties entered into a first and second contract." She cites her own testimony that she and Ronnie Wharton agreed that appellees would perform all of the work for $3,000 and cites as well other testimony that she asserts shows that appellees' witnesses were not credible. She contends that "there was not a meeting of the minds with regards to an oral contract."

In order to make a contract, there must be a meeting of the minds on all terms, using objective indicators. Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). We employ an objective test for determining mutual assent, using objective indicators of agreement and not subjective opinions. Id. Resolution of disputed facts and determinations of credibility are resolved by the circuit court as factfinder. Id. The standard of review for a bench trial is whether the circuit court's findings are clearly erroneous. Ark. R. Civ. P. 52(a) (2004).

We cannot say that the circuit court clearly erred in its decision. Ronnie Whorton testified as to the terms of the contract, and his testimony showed that there was a meeting of the minds between him and appellant on the terms of agreement. While appellant disputes Ronnie Whorton's testimony, disputed facts and determinations of credibility are for the factfinder. Thus, we affirm.

Appellant raises a second point on appeal, arguing that "[s]ince there was not a meeting of the minds between the parties in regards to an oral contract for the work to be performed on Ms. Morgan's property, th[e]n the Trial Court under a qua[s]i[-]contract theory should have awarded a reasonable amount of money to fully compensate Mr. Whorton for the services he actually provided." She asserts that the reasonable value of the work performed would be $3,000 to $3,500, as testified by her expert witness. This issue, however, is premised upon this court reversing the circuit court's finding regarding the existence of a contract. As we are affirming the circuit court, we need not address appellant's second issue. 

Affirmed.

Gladwin and Neal, JJ., agree.