ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART DIVISION I

MITCHENER EXCAVATION and RLI INSURANCE COMPANY

APPELLANTS

V.

GREGORY "MAC" McAFEE, d/b/a BLOCKTECH CONSTRUCTION, and FRONTIER INSURANCE COMPANY

APPELLEES

CA00-1090

May 30, 2001

APPEAL FROM THE THIRD DIVISION OF THE PULASKI COUNTY CIRCUIT COURT

[NO. CIV-98-5730]

HONORABLE JOHN WARD, CIRCUIT JUDGE

AFFIRMED

Appellants, Mitchener Excavation ("Mitchener") and its surety, RLI Insurance Company ("RLI"), appeal the denial of their motion for a continuance and the partial summary judgment granted in favor of appellees, McAfee d/b/a Blocktech Construction ("Blocktech") and its surety, Frontier Insurance Company ("Frontier"). For reversal, appellants cite as error the trial court's ruling that the contract at issue was unambiguous as a matter of law and the finding that a continuance was unwarranted. We disagree with appellants and affirm.

Mitchener bid for and obtained a contract with the Arkansas State Highway and Transportation Department ("ASHTD"), whereby Mitchener agreed that in consideration of being paid $1,382,128.16, it would act as prime contractor for a project that involved the installation of twenty segmented block walls and planters along Interstate 630 with a completion date of November 26, 1997. Thereafter, Blocktech entered into a subcontract

with Mitchener, whereby Blocktech agreed that in consideration of being paid $802,587.50 it would perform certain work1 with a completion date of October 1, 1997.

The project, however, did not proceed as scheduled. Shortly after construction began, problems developed and Blocktech failed to complete its portion of the project until November 26, 1997, and, because of Blocktech's delay, Mitchener did not reach substantial completion until May 9, 1998.

According to Mitchener, who was performing the mass excavation, the delay was caused by Blocktech's inability to timely perform its portion of the project. Mitchener acknowledged that early in the project the Woodrow Street interchange had a slide and a portion of the embankment sloughed off. However, Mitchener does not accept responsibility for the slide or the delay. Thereafter, ASHTD required stabilization of that site before new sites were excavated, which limited Mitchener's dirt removal to no more than two sites ahead of Blocktech wall crews.

A dispute arose between the parties regarding the contractual responsibilities for digging the footings. Appellant asserts, inter alia, that from the beginning of the subcontract until the middle of June, the footings were dug by appellee and from June through August, the footings were dug by appellant, who then charged the cost of the excavation back to appellant. After it completed the subcontract, Blocktech filed suit against Mitchener and RLI, alleging that Mitchener had breached the subcontract by failing to pay Blocktech inaccordance with that agreement and seeking damages for the breach.2 Mitchener answered and counterclaimed against Blocktech and Frontier, alleging that Blocktech's slow and poor workmanship constituted a breach of contract and negligence and seeking damages.

Blocktech filed in a single document, a motion in limine and a motion for partial summary judgment, which was heard during a pre-trial conference. Blocktech's motion asked the court to determine whether the subcontract was ambiguous and if so, whether it could introduce extrinsic evidence to prove the terms of the agreement. The trial court initially granted the motion and ruled that extrinsic evidence could be introduced. However, the trial court on May 22, 2000, one day before the jury trial was scheduled to begin, reconsidered sua sponte its previous decision and ruled that the subcontract agreement was unambiguous and the extrinsic evidence would not be admitted. In response, appellants sought a continuance, which was denied. The trial began the following day.

Following deliberations, the jury returned a verdict for Blocktech in the amount of $144,901.73 plus interest, and found against Mitchener on its counterclaim and third-party claim. The trial court, thereafter, awarded Blocktech an attorney's fee of $31,950.50. From the grant of the partial summary judgment and the denial of the motion for a continuance comes this appeal.

I. Partial summary judgment

Appellants argue that the trial court erred in declaring that as a matter of law the contract unambiguously imposed upon Mitchener the duty of digging the footings for the walls and planters. As such, appellants argue that the trial court erred in granting appellees' motion for partial summary judgment.

Our review of the summary judgments is oft-stated and well-settled. As stated by our supreme court in Meadors v. Still, 344 Ark. 307, 313-314, 40 S.W.3d 294, 299 (2001) (citations omitted):

See also Ark. R. Civ. P. 56.

The initial determination of whether a contract is ambiguous rests with the trial court and, if it is determined that the writing contains a term that is ambiguous, then parol evidence is admissible and the meaning of the ambiguous term becomes an issue for the finder of fact. See First Nat'l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992), cert. denied, 507 U.S. 919 (1993). However, when a contract is unambiguous, then its construction is an issue of law for the trial court to determine. See Floyd v. Otter CreekHomeowners Ass'n, 23 Ark. App. 31, 742 S.W.2d 120 (1988).

The relevant provisions of the subcontract at issue in this case are as follows:

. . .

. . .

Mitchener argued that the subcontract required Blocktech to dig the footings and that it had dug the footings without any objection until the dispute arose. Additionally, Mitchener argued that after August 1997, it dug the footings pursuant to paragraph ten, which provided that the contractor has a right to take over the work at the subcontractor's expense if the subcontractor fails to perform the work in a timely fashion. Furthermore, Mitchener argued that the terms of the contract evidenced the fact that Blocktech was the party responsible for digging the footings. Specifically, Mitchener contended that pursuant to the parties' agreement, it was required to provide Blocktech with a backhoe and Blocktechwas required to notify Arkansas One Call ("One Call") prior to any excavation.

Blocktech countered by arguing that the contract expressly stated that Mitchener, not Blocktech, was "to provide all excavations . . . ."3 Blocktech also refuted Mitchener's claim that other contract terms demonstrate that Blocktech was to dig the footings. Specifically, Blocktech argued that Mitchener provided the backhoe so Blocktech could pick up gravel, dump materials into dump trucks, and level soil at the sites. Additionally, Blocktech explained that because it would know best when it was ready to begin laying blocks at a new wall site, it, and not Mitchener, was required to contact One Call.

On May 22, 2000, the trial judge made the following ruling from the bench:

Upon our review of the subcontract, we cannot say that the trial judge erred as a matter of law. The contract stated that Mitchener agreed to provide "all excavation" for each wall and that Blocktech was to supply the material, including the gravel for the footings. Additionally, paragraph sixteen simply stated that Blocktech was to notify One Call prior to any excavating and trenching but it does not state that Blocktech is to actually do any excavating or trenching. Accordingly, we affirm the trial court's grant of partial summary judgment commensurate with the well-settled principle that "[w]hen contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court's duty to construe the writing in accordance with the plain meaning of the language employed." Holytrent Properties, Inc. v. Valley Park Ltd. Partnership, 71 Ark. App. 336, 339, 32 S.W.3d 27, 29-30 (2000) (citing Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998)).

II. Motion for continuance

The second and final issue appellants ask this court to consider is whether the court erred in failing to grant their request for a continuance. Specifically, they argue that the trial judge abused his discretion by refusing to grant a continuance after he reversed his positionon whether the contract was ambiguous, one day before the jury trial began. Furthermore, they argue that, by the time the judge reversed his position, they had prepared exhibits and charts and that, at a minimum, they should have been given time to re-analyze the case and to attempt to recalculate their damages with the footings issue removed.

The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court's ruling will be reversed only if there is an abuse of discretion. See Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000). The burden is on the appellant to show an abuse of that discretion, as well as to demonstrate prejudice, before this court will consider the trial court's denial of a continuance as an abuse of discretion warranting reversal. See Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000).

In support of their argument, appellants contend that Arkansas State Highway Comm'n v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997), controls and requires a reversal of the trial court's decision. In Frisby, a new report was presented for the first time during the trial and the court granted a two-hour continuance to allow the appellant to examine it. The appellate court reversed and remanded the case and held that the two-hour continuance was an abuse of discretion. Id.

The instant case, however, is distinguishable from Frisby. Specifically, in this case, the legal counsel for the parties had argued the issue concerning the ambiguity of the contract at a prior trial that resulted in a mistrial and during the pre-hearing conference and, therefore, there was no new information to be analyzed. Appellee correctly points out that, if anything, because the extrinsic evidence was excluded, appellants did not have to fight thatbattle in court. Appellants argue that they were prejudiced because the court allowed them less than twenty-four hours to reconfigure a case to be presented to a jury. They further argue that, had they been given an opportunity to reconfigure their damages claims in order to clarify how each group was affected by the footings issue, they could have enhanced the credibility of their witnesses. We disagree.

The record shows that the judge reversed his ruling on the summary judgment motion on May 22, 2000; the trial began May 23, 2000; and that the appellants did not begin their case in chief until May 24, 2000, after appellees had rested. Appellants actually had two evenings to reconfigure their case. Additionally, appellants were very well aware early on during the course of this case that there was a possibility that the trial court would rule that the subcontract was not ambiguous and that extrinsic evidence would be excluded. The parties argued this very issue during the pre-trial conference held on February 7, 2000. As stated earlier, the denial of a motion for a continuance is within the sound discretion of the trial court, and we cannot say that the trial judge abused that discretion.

Affirmed.

STROUD, C.J., and CRABTREE, J., agree.

1 Exactly what Blocktech agreed to do is the issue that is being litigated and will be addressed later in this opinion.

2 Blocktech also alleged that Mitchener breached the subcontract by requiring Blocktech to rent certain heavy equipment from a particular vendor and deducting rental payments from the money Mitchener paid to Blocktech.

3 Actually, Blocktech offered alternative arguments in its summary-judgment motion - both the "all excavation" argument and an argument based on the theory that paragraph (4)(B) (i.e., "All drainage, footings and backfill gravels per specs.") was ambiguous. However, RLI argued in its response to Blocktech's partial summary-judgment motion, which was filed on February 1, 2000, that there was no ambiguity, and Mitchener, in a document filed the next day, adopted RLI's argument. Ultimately, the trial judge, despite granting Blocktech's motion, stated the following with regard to the disputed section:

Because we agree with the trial judge's conclusion that Blocktech's first theory was sufficient to grant summary judgment, we do not address the matter further in order to affirm. Moreover, because neither RLI nor Mitchener affirmatively argued that said provision was ambiguous, we do not address the matter further in order to reverse.