Steven Stouffer and Pamela Stouffer v. T & L Janitorial, Inc. d/b/a ServiceMaster

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

STEVEN STOUFFER and PAMELA STOUFFER

APPELLANTS

V.

T & L JANITORIAL, INC. d/b/a SERVICEMASTER

APPELLEE

CA05-613

March 8, 2006

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CV-2004-56 (V)]

HON. J. MICHAEL FITZHUGH,

JUDGE

DISMISSED

Robert J. Gladwin, Judge

Appellee T&L Janitorial, Inc., d/b/a ServiceMaster filed a complaint in the Sebastian County Circuit Court alleging that appellants Steven and Pamela Stouffer had breached their contract with appellee regarding the cleaning and repairing of appellants' home following a fire. The trial court found in favor of appellee and awarded it $15,111.25 and attorney's fees, and the trial court denied appellants' counterclaim for damages. Appellants raise four points on appeal: (1) as a matter of law, there was no valid, enforceable contract between the parties; (2) appellee's rights arose extra-contractually; (3) the trial court erred in awarding full damages for work that was not fully completed and for awarding attorney's fees for breach of contract when there was no contract; (4) the trial court did not have the authority to require them to accept further performance from appellee and, instead, should have assessed only the reasonable value of services provided and enforced evidentiary presumptions favoring a homeowner who bails his home to a remodeler for repair. We dismiss for lack of a final, appealable order.

On May 16, 2003, appellants' house in Fort Smith, Arkansas, was damaged by fire. An agent from Cincinnati Insurance Company, appellants' insurance carrier, contacted Tommy Smith, the owner of appellee company, who in turn contacted appellants. On May 19, 2003, appellee and Cincinnati's adjuster, Wayne Gammon, viewed the property. Appellee submitted estimates to Gammon, who approved them. Before commencing work on appellants' home, appellee asked Steven Stouffer to sign a document entitled "Authorization and Assignment of Insurance," which stated that:

This is to authorize the firm of ServiceMaster Professional Cleaning & Restoration Services (herein referred to as ServiceMaster) to proceed with the cleaning and/or repair of the loss of damage resulting from _________ which occurred on or about ________ to the property located at ____________. This is also to serve as an authorization for the insurance company of responsible party to pay ServiceMaster direct for services rendered. It is fully understood that the insured is personally responsible for all charges or costs not paid by the insurance company. This insurance benefits to ServiceMaster for services performed and is irrevocable and legally binding. In the event that the insured is paid directly by the insurance company, or if listed payee on a check or a draft is other than ServiceMaster, the insured agrees to pay ServiceMaster for services rendered within five (5) days of their receipt of the document. The insured agrees to be responsible for all the legal costs to collect this debt and agrees to pay a finance charge of 1.5% per month after this (5) day period.

From May until mid-September of 2003, appellee cleaned and restored the property. Appellants moved back into their home in August and complained that appellee had caused additional damage, including a Jacuzzi tub that was scratched. The total cost of the repairs was $35,168.29. Appellee had received three payments totaling $20,057.04 from Cincinnati through Rebsamen Insurance Company. The final check from Cincinnati, in the amount of $15,111.25, representing final payment, was payable to both appellee and appellants. Appellants refused to sign the check, which led to appellee's filing a complaint alleging breach of contract.

In appellants' motion to dismiss, alternative answer, and counterclaim, they stated in paragraph V:

Stating affirmatively the Defendants state that the Plaintiff has failed to perform all of its obligations under the terms of the agreement between Plaintiff and the Defendants and that there is more than $15,000 worth of repairs to have been affected and that despite demands by the Defendants, the Plaintiff has failed and refused to make the repairs.

Appellants counterclaimed, alleging that, despite appellee's representations as to its skill, staff, training, materials, and supplies to completely clean, restore, and repair the damages, appellee wholly and totally failed to complete the job, leaving in excess of $15,000 worth of restoration and repairs undone; that appellee had gone well past the time contemplated by the parties to complete the project, resulting in appellants' residing in an apartment for an extended period; and that personal property removed from their house by appellee prior to restoration and repair was damaged or missing, resulting in damages in excess of $25,000. Appellants also sought punitive damages based on appellee's fraudulent misrepresentation and attorney's fees.

A bench trial was held on March 2, 2005. Wayne Gammon testified that he did not retain appellee and did not refer appellee to appellants. He stated that the insured selects the restoration company and that Steven Stouffer had indicated to him that he wanted appellee to perform the repairs. Gammon testified that at the final meeting in September, he thought the home was near completion with only minor things left to be done and was satisfied with what he saw. Gammon further stated that he did not notice any damage to the house that was caused by appellee, and he indicated that there were personality conflicts between appellants and Tommy Smith. Gammon was presented with appellants' Exhibit 1, a document entitled "Cost to Complete Restoration Work," which consisted of numerous items, totaling $7660, that needed to be cleaned, repaired, or replaced. Gammon stated that, had he been presented with the document at the time of the final meeting, he would have been concerned and probably would not have issued the check representing final payment.

Tommy Smith testified that he called appellants following the fire, talked about the work that needed to be done, and agreed to meet with them on May 19, 2003. He stated that the "Authorization and Assignment of Insurance," a document created by his company, was a contract for restoration service. He conceded that the document was signed by Steven Stouffer in the capacity of the insured but that no one from ServiceMaster had signed it. Smith denied damaging the Jacuzzi tub, and he said that appellants' theory of how the damage occurred was flawed because a ladder would not fit in the tub.

Appellant Steven Stouffer testified that his Jacuzzi tub was damaged in that it had long scratches on it. He suggested that appellee, in attempting to reach the skylight over the tub in order to clean it, had placed a ladder or something in the tub, resulting in the scratches. He stated that appellee had dumped grout in his toilet, sink, and showers and that his toilet now makes "a sound;" that a television placed on the bar in the kitchen had caused the bar to pull away from the wall and had broken the tile; that two rooms were unpainted and not wallpapered; that there was damage to the duct work that eventually leaked onto his ceiling; that his carpet was simply dried with fans after the toilet overflowed; and that appellee had returned his property that was removed prior to restoration and simply dumped it in his garage, kitchen, and dining room. Appellant testified that it was "shoddy" work and that he tried to contact Smith many times and was ignored. He stated that he refused to sign the check when Smith refused to finish repairing the damage caused by both appellee and the fire.

David Huie, a self-employed contractor and builder, testified that appellants' home "was a mess" following the fire and that he examined the house later for completion of work after appellee had left. He estimated that it would cost $7660 to address the repairs that were still not done. Huie conceded that he did not know what appellee had agreed to repair and did not know how any damages had occurred.

Tony Cagle, a water mitigation technician for appellee, testified that his job entailed tearing out carpet and sheetrock and drying structural elements. Cagle stated that he was at appellants' house one day and worked mainly on repairing the Jacuzzi tub. He testified that after he had finished working on the tub, appellants said it was better but that they could still feel scratches. Cagle interpreted that to mean that appellants were satisfied. He stated that he did not know how the scratches got on the tub but that a ladder would fit in the tub.

In a letter opinion filed on March 4, 2005, the trial court found that a contract existed between the parties, given the parties' objective manifestations and oral understanding. The court noted that appellee was to provide restoration work for a fee and that appellants were to benefit from the work. The trial court specifically found that Gammon's testimony was "most convincing." The trial court stated:

The Court finds in favor of the Plaintiff as to the breach of the contract and directs that Defendants and/or their insurance carrier issue a check payable to the Plaintiff in the sum of $15,111.25. The Court further finds that Plaintiff should complete the restoration of the Stouffers' house or reimburse them in a reasonable sum to cover the repainting of the front door, if not done, towel bar replacement, if not done, ceiling fan replacement in the master bedroom and the red room and whatever remaining grout work there is.

Finally, the trial court denied appellants' counterclaim. The trial court found that appellants were "woefully short" of proof justifying an award of punitive damages; that appellants had been reimbursed by their insurance carrier for the out-of-house lodging; and that appellants failed to provide sufficient proof of property damage.

Whether a final judgment, decree, or order exists is a jurisdictional issue that we have a duty to raise, even if the parties do not. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). The general rule is that a conditional order or decree, the finality of which depends upon certain contingencies that may or may not occur, is not final for purposes of appeal. Barnes v. Newton, 69 Ark. App. 115, 10 S.W.3d 472 (2000). To be final and appealable, an order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997). The order must be of such a nature as to not only decide the rights of the parties, but to put the court's directive into execution, ending the litigation or some separable part of it. Budget Tire & Supply Co. v. First Nat'l Bank, 51 Ark. App. 188, 912 S.W.2d 938 (1995).

While the trial court apparently agreed that repairs to appellants' home were not completed, it nevertheless awarded full judgment to appellee along with an untenable option to either complete the restoration work or reimburse appellants for the incomplete work. It is highly unlikely that appellants would be willing to allow appellee further access to their home, and if the parties could agree on what was a reasonable sum for completing the remaining repairs, they would not be engaged in litigation. The trial court's judgment was wholly uncertain and did not resolve the parties' dispute. Because the trial court granted the full relief appellee sought but made the award conditioned upon what further action appellee chose to take, the trial court's judgment was not final, and the appeal must be dismissed.

Dismissed.

Robbins and Crabtree, JJ., agree.