Harold McManus et al. v. Mickey McDonald et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

HAROLD McMANUS, et al.

APPELLANTS

V.

MICKEY McDONALD, et al.

APPELLEES

CA05-224

December 7, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[CV-03-243-2]

HON. JODI MARIE RAINES, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

The sole issue on appeal is whether the trial court's calculation of damages in this case involving a timber harvesting contract was clearly erroneous. We affirm.

Appellee Mickey McDonald entered into a timber harvesting contract with David Cook, who subsequently sold the contract to appellant Harold McManus (d/b/a Baylee Timber Company). The contract provided for the harvesting of timber from 15.92 acres of land in Jefferson County that belonged to McDonald. The contract also set out the specific price to be paid for each type of timber harvested.

While the timber was being harvested, McDonald claimed that more timber had been harvested from his property than he had been paid for. Appellee Marion Arledge alleged that McManus had also cut timber from a portion of his land. Both McDonald and Arledge filed

suit for damages. McDonald alleged that he was underpaid for the timber cut from his land, and Arledge claimed that McManus wrongfully cut timber belonging to Arledge.

McManus tendered $3,149.00 to McDonald for the timber he harvested. McManus claimed that this amount was double the amount owed under the contract for all timber cut from the 15.92 acres in question. After a bench trial on the matter, on September 9, 2004, the trial court requested that each party submit briefs addressing the issue of damages. Specifically, the court requested that:

In order to accurately calculate damages I am asking that you provide additional information. The contract and the appraisal use different terms and there are no definitions submitted to guide me. For example, the contract uses the terms `logs' and `tie logs' but the appraisal uses `sawtimber' and `topwood.' You may submit individual briefs or a joint brief if the parties can work that out, but until the court receives the brief(s), no damages will be determined.

On October 8, 2004, McDonald and Arledge filed a brief on damages, per the trial court's requests. However, on October 28, 2004, the trial court noted that "[a]s of this date [McManus has] not filed a brief or requested additional time within which to file one. Therefore, I have rendered a decision on damages." The court then went on to award damages to McDonald in the sum of $21,586.32 for the trees harvested and damage to his property. The court also awarded Arledge $7,555.18 for his portion of the trees harvested. Additionally, the trial court ordered that McManus pay attorney's fees in the amount of $13,432.50. It is from these awards that McManus appeals. McManus's argument on appeal relates to the calculation of damages at trial. However, during trial, he failed to make the necessary objections in order to preserve this issue for appeal. Further, he failed to file a brief on damages-despite the trial court's specific request-after the court rendered a verdict in McDonald and Arledge's favor. The only objection McManus made at trial concerned McDonald's testimony regarding the market prices of pulp wood, which was only a small portion of the timber harvested. Further, after the objection, the parties and courtagreed that McDonald could testify regarding how he arrived at the pulp wood's value, but not as to what someone told him.

It is well-settled law that issues raised for the first time on appeal will not be considered on appeal because the trial court did not have an opportunity to rule on the argument. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003). When the issue one is objecting to pertains to damages, our law requires that the objection be specific. In Precision Steel Warehouse v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993), our supreme court noted that because the party made only a broad objection-that the proper measure of damages was not set out-the trial court was not properly informed as to why the measure was wrong and the objection was not sufficiently specific to present any question for appellate review.

Here, not only did McManus fail to properly object to the testimony on damages or the trial court's damages calculations, he also failed to tender a brief specifically requested by the trial court on the issue of damages. Accordingly, he has failed to preserve his right to raise this issue on appeal.

Affirmed.

Glover and Neal, JJ., agree.