ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

ARKANSAS STEEL ERECTORS, INC.

APPELLANT

V.

M. C. WHITE CONSTRUCTION CO., INC., ET AL.

APPELLEES

CA00-507

April 4, 2001

APPEAL FROM THE BAXTER COUNTY CIRCUIT COURT

[NO. CIV-98-115]

HON. ROBERT McCORKINDALE, II,

CIRCUIT JUDGE

REVERSED AND REMANDED

Appellant Arkansas Steel Erectors, Inc., appeals from the Baxter County Circuit Court's award of summary judgment to appellee M.C. White Construction Company, Inc. (hereinafter "MCW"). Appellant was the subcontractor on a construction project at Pinkston Middle School in Mountain Home, Arkansas (hereinafter "the project"). Appellees are MCW; United Dominion Industries, Inc., d/b/a Varco-Pruden Buildings, (hereinafter "VP"); and United States Fidelity and Guaranty Company (hereinafter "USF&G"). MCW was the general contractor on the project, and VP was the steel supplier. Appellant sued appellees for payment for the work it performed. VP was made a defendant in the action when MCW filed a third-party complaint against it; appellant later amended its complaint naming VP as

a defendant. USF&G is the surety company for MCW on the project. The trial court dismissed with prejudice appellant's amended and substituted complaint. It also dismissed the third-party claim, finding it moot as a result of the summary judgment.

Appellant and MCW entered into four separate contracts for buildings A, B, C and K, all of which comprised the project. All of the contracts required appellant to erect the steel in the construction of the various buildings. MCW was responsible for furnishing the steel, and it used VP as its supplier. The contract for building A was executed January 10, 1997, for $120,517.00; the contract for building B on October 25, 1996, for $14,600.00; the contract for building C on October 29, 1996, for $19,200.00; and the contract for building K on October 30, 1996, for $10,500.00. It is undisputed that the total amount of the four contracts is $164,817.00.

Appellant argues that it was paid only $144,730.90 of the original total contract amount, that it performed additional work in the amount of $73,045.52, and that appellees are therefore jointly and severally liable to it for $93,131.62. MCW argues that the original contract price of $164,817.00 is subject to deductions for work that appellant did not perform, i.e., roofing work in the amount of $16,143.00; and for the cost of remedying defective work performed by appellant in the amount of $3,311.34. MCW further argues that the total amount payable under the contracts after these deductions is $145,362.66, $130,874.26 of which has been paid MCW along with $13,857.00 for extra work performed by appellant. MCW argues that the value of the extra work that appellant performed is$19,726.00 and that, after the deductions and credits, MCW owes appellant only $20,357.40. MCW filed a motion for summary judgment and supporting brief on June 3, 1999.

Appellant argues on appeal that the trial court erred as a matter of law by granting summary judgment for separate defendant MCW and separate defendant VP. We agree.

We first address the issue of whether the trial court erred by granting summary judgment for MCW. Appellant argues that it has two causes of action against MCW. The first claim is for damages for extra work it performed at the job site, primarily to repair structural problems and faulty workmanship of others; the second claim is for damages for delay resulting from MCW's failure to cause the materials to be delivered to the job site in an orderly sequence that would have allowed construction to progress as anticipated.

Both appellant and MCW acknowledge that, after construction began, they had a discussion wherein they agreed that MCW would perform roofing work that appellant was to have performed and that appellant's contract would be reduced to reflect this change. It is also undisputed that this agreement was never reduced to writing. Appellant argues on appeal that this is evidence that the parties continually modified the express terms of the written contract either orally or by their conduct. MCW also concedes in its brief that appellant performed extra work, but asserts that this was caused by third-party defendant VP and by other factors. It argues that appellant's performance of this extra work is not relevant for purposes of the summary judgment because no change in the sub-contract price was authorized in writing within ten days as required by Article 3 of the contracts. Article 3 in all four contracts provides that:

The Contractor at any time by written order of the Contractor's authorized representative, and without notice to the Sub-Contractor's sureties, [sic] make changes in, additions to and omissions from the work to be performed and materials to be furnished under this sub-contract and the Sub-Contractor shall promptly proceed with the performance of this sub-contract as so changes [sic]. Any increase or decrease in the sub-contract price resulting from such changes shall be agreed upon in writing by the parties hereto. Any claim for adjustment of the contract price under this Article must be made in writing ten (10) days from the date such changes are ordered. No increase or decrease in the sub-contract price shall be binding on the Contractor unless agreed upon in writing by the parties hereto.

A trial court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000). Once a moving party establishes prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Id. at 20.

MCW's evidentiary items supporting its motion for summary judgment include an acknowledgment that appellant is entitled to additional payments because appellant did perform additional work due to problems caused by third-party defendant VP and by other factors, that there was a problem with the delivery schedule, and that there was further oral modification to the contracts because MCW performed roofing work that appellant hadoriginally contracted to perform. Looking at the proof as put forth by MCW, we think that material questions of fact remain unanswered. MCW argues that appellant is not entitled to full payment for the extra work appellant performed because there was never a written change order. Somewhat inconsistently, at the same time MCW maintains that it is entitled to a setoff because it performed part of appellant's work, performance that was also undertaken without a written change order. Based on the facts as put forth by MCW, questions remain about how much work was performed, who was responsible for that work, and the value of that work.

Appellant cites Hempel v. Bragg, 313 Ark. 486, 856 S.W.2d 293 (1993), for the proposition that a written contract may be avoided, modified, waived or rescinded by the actions of the parties. Although Hempel does not expressly so hold, our supreme court did note in that case that two of its prior decisions implied that Arkansas would follow the general rule as set forth in 13 Am. Jur. 2d Building and Construction Contracts § 24 (1964), if presented with the requisite facts. Hempel v. Bragg, supra, citing U.S. Rubber Co. v. Northern, 236 Ark. 381, 366 S.W.2d 186 (1963), and RAD-Razorback, Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). The general rule set forth in American Jurisprudence 2d is as follows:

A provision in a private building or construction contract that alterations or extras must be ordered in writing can be avoided by the parties to the contract when their words, acts, or conduct amount to a waiver, modification, rescission, abrogation, or abandonment of the provision, or when the owner (or the general contractor in the case of a subcontractor) by his or her acts or conduct is estopped from reliance on it.

13 Am. Jur. 2d Building and Construction Contracts § 24 (1964).

The undisputed facts in the instant case are that appellant performed extra work and that there were delays due to the steel deliveries by VP. MCW relies on Article 3 in the contracts as its sole reason for arguing that appellant is not entitled to payment for extra work performed. However, parties can, by their actions, modify or rescind a written provision in a contract and whether this happened is a factual issue. Luningham v. Arkansas Poultry Federation Insurance Trust, 53 Ark. App. 280, 922 S.W.2d 1 (1996). Additionally, there remain factual questions concerning the extent of the delays, whether the delays were unreasonable, and whether the contracts provided adequate remedies for the delays. See generally Texarkana Housing Authority v. Johnson Construction, 264 Ark. 523, 573 S.W.2d 316 (1978). After a review of these disputed facts, it is evident that summary judgment was not proper on the facts presented. Consequently, we hold that the trial court erred in granting summary judgment for MCW and in dismissing the amended, substituted, and third-party complaints.

Reversed and remanded.

Baker and Roaf, JJ., agree.