David Parks and Debra Lynn Parks v. Michael R. Vierling and Karen E. Vierling
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III
CA 05896
MARCH 15, 2006
DAVID PARKS and DEBRA LYNN
PARKS
APPELLANTS
APPEAL FROM THE BAXTER
COUNTY CIRCUIT COURT
[NO. CV20021704]
V.
HONORABLE GORDON WEBB,
JUDGE
MICHAEL R. VIERLING and KAREN
E. VIERLING
APPELLEES
AFFIRMED
JOHN B. ROBBINS, Judge
This is an appeal from a judgment rendered in Baxter County Circuit Court against
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appellants David and Debra Lynn Parks in a lawsuit for breach of a construction contract
filed by appellees Michael and Karen Vierling. Appellant is in the business of building and
selling houses. Appellees purchased a house built by appellant in July 1999, closing on the
house when it was near completion. In February 2000 and the following months, the crawl
space of the house was repeatedly infiltrated with water upon each heavy rain. Despite
appellant’s initial attempts to fix the water problem, it persisted, and appellant abandoned
those efforts by fall 2000. Appellees filed suit in May 2002, and appellant defended on the
ground that any water problem was due to alterations on the property done by appellees.
After a twoday bench trial, the trial judge took the case under advisement, ultimately finding
that appellees had proven by a preponderance of the evidence that appellant failed to
properly provide for adequate drainage during construction of the house; that appellant
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For ease of reference, we will refer herein only to David Parks as the primary
appellant. Mr. Parks was the actual builder/contractor on this construction project and
the person with whom appellees communicated.
breached the implied warranties of merchantability and fitness for a particular purpose; that
appellant was responsible for resulting damages that were $10,450 in costs to repair the
drainage problem; and that appellant was responsible for appellees’ attorney fees in the
amount of $11,470.36 plus court costs. The judgment was entered on February 4, 2005, and
a timely notice of appeal followed. Appellant appeals arguing that (1) the finding that
appellant was responsible for the drainage problem is not supported by a preponderance of
the evidence, and (2) the award of the full requested attorney fee constitutes an abuse of
discretion. We affirm.
We initially set forth the relevant testimony and evidence presented in this bench trial.
The parties stipulated that appellant was a builder and the vendor of this home, which was
sold to the first occupants, appellees. They further stipulated that the defects became
apparent within the first year of ownership.
Appellee Michael Vierling testified that in late 1999 after moving into the house, he
hired Mr. Dickerson to pour concrete in a small triangular area, covering an area of dirt
abutting the house to create a patio. This area was bordered by the sidewalk leading to the
front door. By the early months of 2000, appellee noticed a substantial amount of water in
the crawl space underneath the house, so he called appellant. Appellant came to the house
and knocked out a hole low in the foundation, placing a small drain pipe into the hole. This
did not solve the problem. About a month later, appellant came out and installed a curtain
drain along the east side of the house, which purportedly emptied into a gravel pit at the end.
A few weeks after that, appellant came back to replace the top soil over the drain and lay
seed and straw atop the soil. The new trench did not solve the problem, because with each
rain more water entered the underneath crawl space. The next time appellant came out to
the house, he brought a civil engineer, Mr. Huett, with him. Mr. Huett believed that a buried
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curtain drain was useless unless it exited to “daylight.” Mr. Huett also suggested that
appellant grade the land away from the house to divert runoff. In June 2000, appellant said
he “fixed” a downspout on the house by placing the downspout into a PVC pipe already
placed underneath the sidewalk. In July 2000, appellant reopened the curtain drain and
refilled it, and he attempted to grade the dirt on the property. None of these actions stopped
the crawlspace from filling with water upon each rain.
With that, appellant contacted Mr. Huett to file a formal engineering report.
Mr. Huett recommended a curtain drain to be installed along the north side, or front, of the
house and to be attached to the eastside drain. Mr. Huett also recommended an additional
fourfoot extension of the concrete along the garage. Appellant installed a northsided drain
but did no more. Appellant said he stopped working on this problem from and after
September 2000. Appellant had spent approximately $4700 toward the drainage problem.
The flooding continued, and it appeared to appellee that the water came from the back
of the garage. Appellee said he spent over $700 in rental equipment to repeatedly extract the
water and dry the crawl space. Because the crawl space was “in a constant state of wet”
growing moss, fungus, mushrooms, and harboring frogs, appellee contacted another engineer,
Mr. Willett, to fix the problem. Multiple pictures of the crawlspace, showing water marks
on the foundation piers and the like, were introduced into evidence.
In October 2000, Mr. Willett installed a garage apron and placed a cap on it, which
appellant had refused to install, and also completed grading of the lot. This work cost $2050.
In the spring of 2001, Mr. Willett installed a new curtain drain along the east side of the
house, and replaced the soil and grass seed, which cost $1400. Drainage problems persisted,
so Mr. Willett came back in 2002 to install footing and a foundation across the front of the
garage, which had never been done in the construction of the house. Mr. Willett also
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wrapped the whole house with a curtain drain to ensure that there would be no more
water problems. Appellees paid Mr. Willett $7000 for this additional work. The total of
Mr. Willett’s fees was $10,450.
Mr. Huett testified that he understood that the garage and driveway sat upon shot rock,
which rock is approximately six inches in diameter. Mr. Huett agreed that water readily
flowed through shot rock and that the lot itself was sloped such that water flowed toward the
house. Mr. Huett faulted the masonry work in the foundation, and he said that the water was
primarily coming from under the garage into the crawl space. Mr. Huett said that the lack
of footing or a foundation wall was not good practice; this left no protection. Mr. Huett
described appellant’s attempts at grading the lot to be “halfhearted.” He said that appellant
did not install the curtain drains as he had told him to. Mr. Huett agreed that appellant
brought another engineer to trial to testify on his behalf, but Mr. Huett stated that appellant’s
expert did not have the opportunity to be out at the house when the water was actually
accumulating. Mr. Huett’s recommendations and sketches were entered into evidence.
Mr. Willett testified that in his thirtytwoyear career as a general contractor, he had
fixed thirtyfive to forty drainage problems. Mr. Willett did not agree that the more
economical drains were the best solution. He thought that the best attack was directly at
the source. Nonetheless, he repaired the curtain drains. When this did not solve the
problem, he installed proper footing and a foundation, filling in all the piers under the house.
Mr. Willett observed the presence of shot rock throughout the underneath of the garage area.
He said the shot rock was several inches in diameter. He said he found no evidence that the
builder took any precautions to protect this house from water, where it sat in a natural drain.
He characterized it as “incomplete workmanship” done to “save a few bucks.” Mr. Willett
thought that the patio concrete was poured to a tight fit, and he believed that Mr. Dickerson
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did good work. He also said that he saw no evidence that water came down through a vent
in the side of the house.
Appellant testified that he had built as a general contractor for about fifteen years,
averaging ten homes a year. He agreed he put shot rock underneath the garage and packed
it down with a dozer, but he said he “knocked down” the shot rock to oneandthreequarter
inch size so it would pack. He agreed that he responded to appellees’ complaints in May
2000, first creating a hole and installing a pipe in the foundation and later installing the
curtain drain. After going out to the house and working on the problem five or six times,
appellant agreed he stopped his efforts. Appellant believed that the triangular patio concrete
tilted toward the house sending water underneath the house; that someone damaged the
downspout in the process of installing the patio, which he later repaired; and that appellees
had added dirt to the property, sloping the runoff toward the house. Because of these three
things, appellant faulted appellees for the persistent water problem. However, appellant
agreed upon cross examination that “it’s not good workmanship for a house’s crawl space
to fill up with water.” He also agreed that after he fixed the downspout, the water problem
persisted.
Appellant’s brother Everett Parks testified that he also believed that the concrete patio
sloped toward the house because he placed a level onto the patio. He said that this triangle
space of dirt had been left open for a flower bed. Everett confirmed that when they finished
the house in July 1999, the downspout was draining into the drain line under the sidewalk,
but the next spring, the downspout was pouring onto the concrete.
Appellant called a civil engineer, Victor Sanchez, to the stand. Mr. Sanchez was hired
in late 2002 or early 2003 to inspect the premises. He opined that most of the water was
coming in through a vent or through the area adjacent to the concrete patio, which he thought
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sloped toward the house. Mr. Sanchez based that opinion on his viewing of the high water
marks on the piers under the house. He was unaware of the material used under the concrete
garage and driveway, and he agreed that if aggregate were there, water could easily drain into
the crawl space. Mr. Sanchez agreed that it was poor design not to have a footing underneath
the garage.
Mr. Dickerson testified that he poured the concrete patio, leveling it away from the
house. He confirmed this by using a level prior to pouring the concrete, and then testing the
flow of water after it was poured by running water from a hose atop the patio. Mr.
Dickerson said that the sidewalk tilted toward the house, based upon him setting a level on
it.
Each attorney presented a closing argument. The trial court took the case under
advisement. After trial, appellees submitted a motion for attorney’s fees in the amount of
$11,470.36, attaching the entirety of their attorney’s billing statements. Appellant resisted
the award of attorney fees, arguing that appellees were not yet the prevailing party, and in
any event, the requested fee was excessive in relation to the damages sought. In January
2005, the trial judge rendered his decision by letter opinion finding in favor of appellees and
against appellant.
The burden of proof in a bench trial is by a preponderance of the evidence. Chavers
v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). On appeal, we reverse findings of fact
by the trial court only upon a determination that the trial court’s findings are clearly
erroneous or clearly against the preponderance of the evidence. Such findings are clearly
erroneous when, although there is some evidence to support them, the appellate court is left
with a distinct and firm conviction that a mistake was committed. See Bendinger v.
Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999). However, resolution of
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conflicts in the evidence and the determination of credibility is left to the fact finder, not the
appellate court. See Raiborn v. Raiborn, 254 Ark. 711, 495 S.W.2d 858 (1973). This
standard of review applies to appellant’s first argument on appeal. Appellant contends that
his witnesses were more credible regarding whether it was appellant’s or appellees’ fault that
a drainage problem existed. We cannot agree with appellant.
The pertinent findings on this issue were set out in the letter opinion. The judge
recalled that this was a full twoday bench trial and that he took down twentyfive pages of
notes while hearing the case. The judge also recited that he studied each side’s trial briefs,
the more than fifty exhibits introduced at trial, and took approximately three days to research
and consider the issues. He rendered findings that he was “substantially more convinced by
the testimony and evidence presented by the Plaintiffs [appellees] as to the cause of the
problem;” that the builder should have recognized and identified the natural drainage
problem on this parcel of land and built the home with appropriate manmade drainage to
compensate; that despite appellant’s initial goodfaith efforts to fix the problem with
installation of a curtain drain among other measures, those efforts were unsuccessful; and
that appellant was responsible for the costs appellees incurred to stop the drainage problem
once and for all.
Appellant argues on appeal that these findings are clearly against the preponderance
of the evidence. Appellant asserts that the facts in this case “are quite complicated” and that
because of “the totality and enormity of this case and conflicting testimony,” appellees failed
to meet their burden of proof on the cause of the drainage problem. We disagree. To the
extent that there were conflicts in the testimony, and there were many, this was an issue for
the trial court to resolve, not our court. We are not at liberty to pick and choose the more
compelling witnesses, nor is the sheer number of witnesses or pieces of evidence the
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deciding factor. Appellees presented ample evidence that, if believed, supports the trial
court’s findings by a preponderance of the evidence. We affirm this point on appeal.
The second issue on appeal concerns the award of attorney fees to the prevailing
party. All parties agree that there is statutory authority in Ark. Code Ann. § 1622308
(Supp. 2005) to award such fees. The gravamen of appellant’s argument is that it was an
abuse of discretion to award fees of $11,470.36 when the damage award was only $10,450.
Appellant states in his brief on this issue that “this case did not involve a complex or novel
subject matter.” Appellant does not contest the hourly rate charged or whether all of the
billing was related to this particular case. We disagree that appellant has demonstrated an
abuse of discretion in this instance.
A trial court is not required to award attorney fees, and because of the trial judge’s
intimate acquaintance with the trial proceedings and the quality of service rendered by the
prevailing party’s counsel, appellate courts generally recognize the superior perspective of
the trial judge in determining whether to award such fees. See Jones v. Abraham, 341 Ark.
66, 15 S.W.3d 310 (2000). Appellant sets forth the relevant factors to consider when
determining an award of attorney’s fees. See, e.g., Phelps v. U.S. Credit Life Ins. Co., 340
Ark. 439, 10 S.W.3d 854 (2000). The amount of the fee is a discretionary decision. See
Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 777 (1998). We will not
disturb the trial judge’s decision absent an abuse of discretion. See Chrisco v. Sun Indus.,
Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).
The trial court awarded the full amount sought, which was supported by detailed
billing statements from June 2000 through the trial conducted in July 2004. The trial judge
noted in his letter opinion that both attorneys were well prepared and very capable. The trial
judge determined that appellees’ attorney’s billing was well documented, that the billing was
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reasonable in light of the great deal of time and effort expended for this case, and that the
fees would be granted pursuant to appellees having prevailed on their contractbased suit.
We are hard pressed to hold that the trial court’s decision constitutes an abuse of discretion,
particularly where in point one of appellant’s brief, he states how complicated this case was.
We affirm the discretionary decision to award this attorney fee. See Burns v. Burns, 312
Ark. 61, 847 S.W.2d 23 (1993).
We affirm.
PITTMAN, C.J., and BAKER, J., agree.
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