Steven Stouffer and Pamela Stouffer v. T & L Janitorial, Inc. d/b/a ServiceMaster
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
D.P. MARSHALL JR., JUDGE
DIVISION II
CA07364
12 December 2007
STEVEN STOUFFER and
PAMELA STOUFFER,
APPELLANTS
v.
T & L JANITORIAL, INC. d/b/a
SERVICEMASTER,
APPELLEE
AN APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
[CV200456(V)]
THE HONORABLE J. MICHAEL
FITZHUGH, CIRCUIT JUDGE
AFFIRMED
After a bench trial, the circuit court concluded that Pamela and Steven Stouffer had
a contract with T & L Janitorial, Inc. d/b/a ServiceMaster to clean and restore their home
after a fire. The court further concluded that the Stouffers broke that contract when they
refused to endorse a final check from their insurer, one of the Cincinnati Insurance
Companies, to ServiceMaster. The Stouffers contend that no contract existed. They argue
that their obligation to ServiceMaster was a matter of quasicontract, and thus we should
reverse and remand for the circuit court to fix the reasonable value of ServiceMaster’s
services. The Stouffers also challenge the court’s award of attorney’s fees to ServiceMaster
because that award stands or falls on the contract question. We affirm on all the issues
because the circuit court’s conclusion that the parties had a contract is not clearly against the
preponderance of the evidence.
I.
In May 2003, the Stouffers’ house caught on fire. The next day, their insurance
company contacted ServiceMaster about cleaning and restoring the house. Several days
later, Cincinnati’s adjuster, Wayne Gammon, and ServiceMaster’s owner, Tommy Smith,
went to the property to view the damage. That day, the Stouffers indicated to Gammon that
they wanted to hire ServiceMaster to do the restoration work on their home. Mr. Stouffer
signed an “Authorization & Assignment of Insurance” agreement on ServiceMaster
letterhead, which stated:
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 fire 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.
(emphasis in original). This form also contained the home’s address and contact information
for everyone, including Gammon.
The Stouffers moved out of their house from late May through midAugust while
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ServiceMaster cleaned and restored it. As the work progressed, ServiceMaster prepared
detailed estimates for the tasks, which Gammon approved from time to time. There was no
evidence that the Stouffers saw or approved these estimates. Cincinnati paid for the
restoration in several installments. It issued the first check in June and a second check in
July. It made each check payable to both the Stouffers and to ServiceMaster. The Stouffers
endorsed each of these checks, and then gave them to ServiceMaster as required by the
Authorization and Assignment of Insurance document.
After the Stouffers moved back into their home in August, they complained that
ServiceMaster had failed to complete the job and had caused additional damage to their
house by scratching their Jacuzzi bathtub. In late September 2003, Gammon, Smith, and the
Stouffers met at the house to discuss the final tasks that needed to be finished. Mr. Stouffer
was ill and did not participate in this meeting. Mrs. Stouffer participated, but did not testify
about what occurred. According to Gammon, the work was 95% completed by this meeting
and only a few minor tasks remained, such as hanging a towel rack and installing a ceiling
fan. In the following weeks, Cincinnati received a final estimate from ServiceMaster and
issued the final check in the amount of $15,111.25.
The Stouffers refused to endorse that check. ServiceMaster had polished but not
replaced the scratched bathtub; the remaining restoration tasks had not been done; and the
working relationship between the Stouffers and ServiceMaster had fallen apart.
ServiceMaster then sued the Stouffers for breach of contract because they refused to
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sign the final check in accordance with the Authorization agreement. The Stouffers
counterclaimed against ServiceMaster, alleging that it had failed to complete the job, leaving
more than $15,000.00 worth of restoration and repair undone. The Stouffers also alleged an
additional $25,000.00 in damages because, among other things, ServiceMaster removed their
personal property from the house to do the repairs, and failed to return or damaged many of
the items. No one sued Cincinnati.
After the trial, the circuit court concluded that ServiceMaster and the Stouffers had
a contract and that the Stouffers were in breach. Here is Judge Fitzhugh’s reasoning:
The Court finds that a contract existed between the parties. Both sides
intended to enter into a service agreement. That is, Plaintiff was to provide
restoration work, for a fee and Defendants were to benefit from said work.
That was the objective manifestation of each side as well as the oral
understanding between the sides.
The court held that the Stouffers failed to provide sufficient proof on their counterclaim and
dismissed it. The court ordered the Stouffers to pay ServiceMaster $15,111.25. The court
also ordered ServiceMaster to complete the restoration of the home or reimburse the
Stouffers in “a reasonable sum to cover . . .” a list of specific repairs. On ServiceMaster’s
later motion, the court awarded the company approximately $4,000.00 in attorney’s fees.
The Stouffers appealed. This court dismissed their appeal for lack of a final order
because the judgment was indefinite about the reimbursement for additional repairs. Stouffer
v. T & L Janitorial, CA05613, slip op. (Ark. App. March 8, 2006). On remand, the circuit
court modified its previous order by giving the Stouffers a $924.83 credit for the
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uncompleted repairs. The court then reaffirmed the rest of its prior judgment. The Stouffers’
second appeal brings the merits here.
II.
The record sustains the circuit court’s decision. The Stouffers’ main contention is an
either/or: either the parties had an express contract, which would support a claim for breach,
or their obligations were quasicontractual, implied by law and enforced to prevent unjust
enrichment irrespective of breach. This is a false choice. Our law also recognizes contracts
implied in fact, “where the contract is inferred from the acts of the parties. . ..” Steed v.
Busby, 268 Ark. 1, 7, 593 S.W.2d 34, 38 (1980); see also Berry v. Cherokee Village Sewer,
Inc., 85 Ark. App. 357, 360–61, 155 S.W.3d 35, 38 (2004). The legal relationship created
by a contract implied in fact is no different from the one created by an express contract.
Steed, 268 Ark. at 7, 593 S.W.2d at 38.
The Stouffers argue that no contract existed because the Authorization and
Assignment of Insurance was indefinite and lacked mutuality. As to definiteness, they point
out that the document contained no total or estimated price, no rates, and no specifics about
the restoration tasks. As to mutuality, they argue that though Mr. Stouffer assigned the
insurance proceeds, ServiceMaster did not promise unequivocally to do the work. These
attacks, however, overlook the parties’ course of performance. This document was just one
of the parties’ many acts manifesting an objective intention to be bound. Shea v. Riley, 59
Ark. App. 203, 206, 954 S.W.2d 951, 953 (1997).
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The parties executed their arrangement. The Stouffers told ServiceMaster to do the
restoration. The company went to work. It was undisputed that, for about three months,
ServiceMaster had possession of the Stouffers’ home and performed a clean up. During this
time, the Stouffers endorsed two checks from Cincinnati to pay toward the cleanup costs.
This performance eliminated any mutuality problem about ServiceMaster’s obligations that
may have existed at the threshold. Swafford v. Sealtest Foods Division of Nat’l Dairy
Products Corp., 252 Ark. 1182, 1188, 483 S.W.2d 202, 206 (1972).
We discern no insuperable indefiniteness problem either. The law requires reasonable
certainty about the parties’ terms. Key v. Coryell, 86 Ark. App. 334, 341, 185 S.W.3d 98,
103 (2004). Though “a contract is uncertain in its terms, it does not necessarily follow that
it is a nullity.” Beasley v. Boren, 210 Ark. 608, 612, 197 S.W.2d 287, 289 (1946). The
Stouffers wanted their house restored to prefire condition as soon as possible, as anyone in
this difficult situation would. Cincinnati’s obligation to the Stouffers was to pay for that
restoration—in Gammon’s words “to get . . . an insured back to the way they were one hour
before the incident happened.” ServiceMaster offered to “proceed with the cleaning and/or
repair of the loss of damage resulting from the fire . . ..” This was a definite offer to restore
the home completely. There was no indefiniteness about the Stouffers’ assignment of all
their insurance proceeds to ServiceMaster. And the particulars of ServiceMaster’s tasks
came clear during the work.
The parties to a contract may, by their mutual actions in carrying it out, furnish
an index to its meaning, which the language thereof fails to do. After all, the
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written instrument is but an evidence of what the signers thereof propose to
bind themselves to do, and when by their conduct in carrying out the
agreement, both of the parties demonstrate an intention to heal an uncertainty
in the contract, the courts will generally adopt this practical construction.
Beasley, 210 Ark. at 612, 197 S.W.2d at 289.
Completely restoring the Stouffers’ home necessarily involved some uncertainty at
the outset about the extent of the work. ServiceMaster’s undisputed performance through
the detailed estimates and the work across several months, coupled with the Stouffers’
repeated endorsement of Cincinnati’s checks for that work, healed any uncertainty in the
parties’ contract. See also Foundation Telecommunications, Inc. v. Moe Studio, Inc., 341
Ark. 231, 242, 16 S.W.3d 531, 53839 (2000).
It is not dispositive that the Stouffers never saw and approved the detailed estimates.
Cincinnati did. And this company was footing the bill and acting on behalf of its insureds,
the Stouffers. Moreover, the parties’ main dispute was not about whether ServiceMaster
agreed to do particular tasks; it was about whether ServiceMaster had done all the tasks it
had agreed to do in the estimates. The detailed estimates show the parties’ contract in
execution. The alleged breach turned on ServiceMaster’s follow through. The Stouffers
described this situation in their counterclaim: “Despite the representations of
[ServiceMaster] as to having the requisite skill, staff, training, materials, and supplies to
completely clean, restore, and repair the damages resulting from the fire [ServiceMaster has]
wholly and totally failed to complete the job leaving in excess of $15,000.00 worth of
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restoration and repair undone[.]” The parties’ arrangement achieved reasonable certainty,
which allowed the circuit court to determine whether a breach occurred and an appropriate
remedy. Arkansas law required no more. Key, supra.
We affirm the circuit court’s decision that the parties had a contract and that the
Stouffers were in breach of it. The Stouffers do not challenge the circuit court’s rejection
of their counterclaim or the amount of the credit that they received for the few unfinished
repairs. The Stouffers attack on the attorney’sfee award therefore fails. Their obligation
to ServiceMaster was a matter of contract, not quasicontract. And our statute allowing the
circuit court to award fees in a breachofcontract case, Ark. Code Ann. § 1622308 (Repl.
1999), makes no distinction between express contracts and contracts implied in fact. There
is no distinction because the legal relationship created by both kinds of contracts is the same.
Steed, supra. We therefore affirm the award of fees too.
Affirmed.
VAUGHT and MILLER, JJ., agree.
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