NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION I

SOUTHWESTERN GLASS

COMPANY, INC.

APPELLANT

V.

WAELDER OIL AND GAS, INC., and FRED J. WAELDER

APPELLEES

CA 00-1266

November 7, 2001

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[CIV98-37]

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

AFFIRMED

Appellant, Southwestern Glass Company, Inc., appeals from a jury verdict in favor of appellees, Waelder Oil and Gas, Inc., and its president, Fred J. Waelder. We affirm.

Appellant produces mouth-blown glass items in plants located in Van Buren and Fort Smith, Arkansas. It uses large amounts of natural gas in producing its product. Appellees leased mineral rights from landowners and contracted with them to sell their gas and in return to pay them a portion of the selling price of the gas. On March 3, 1995, appellant entered into a contract with appellees, who agreed to provide a specified amount of natural gas to appellant. The contract also provided that a pipeline had to be constructed for the delivery of the gas. The cost of constructing the pipeline from the gas wells to the delivery point was to be borne by appellees, and the cost of the pipeline from the delivery point toappellant's plant in Van Buren was to be borne by appellant. Appellees were to supervise the construction of the pipeline from the delivery point to appellant's plant at no additional charge. The contract further provided that the construction of the pipeline was to commence June 1, 1995, and be completed prior to August 1, 1995. Delivery of the gas was to begin on August 1, 1995, one day after the expiration of a contract appellant had with Arkansas Oklahoma Gas Corporation ("AOG") to supply its gas.

AOG sued appellees to enjoin the construction of the pipeline, and appellant intervened in the action. A temporary restraining order was issued on July 18, 1995, granting the injunction. Both appellant and appellees appealed, and on July 15, 1996, the supreme court reversed the chancery court and remanded the case. In August 1996, construction of the pipeline resumed; however, AOG once again challenged the project, and the parties were required to bore deeper below a street under which they had previously bored. In the contract, the parties had agreed that each would bear the cost of their own fees in defending any litigation commenced as a result of constructing the pipeline, and an addendum to the contract provided that the parties would split the cost of the second bore.

At some point prior to the completion of the project, appellees suggested to appellant that a back-up propane tank should be installed to ensure the constant, minimum flow of gas that appellant required. Michael Christman, appellant's president, testified that appellees told him the cost of the backup propane system would be about $40,000. Appellant refused the request. The pipeline was completed February 5, 1997. On February 12, 1997, appellant sent appellees a letter terminating the contract.

On February 5, 1998, appellees sued appellant for breach of contract and requested damages totaling $1,605,180. Appellant filed an answer and counterclaim and claimed that appellees breached the contract by asking appellant to provide a back-up tank and that appellees failed to comply with the contract and to properly supervise the construction and installation of the pipeline. Appellant requested $500,000 in damages.

The jury returned a general verdict of $487,000 for appellees, and a judgment was entered on July 5, 2000. On July 11, 2000, appellant filed a motion for judgment notwithstanding the verdict and, in the alternative, a motion for a new trial. The circuit court entered an order on July 20, 2000, denying appellant's motion, and appellant appealed on August 4, 2000. Appellant now raises four issues on appeal: (1) whether there was a legally sufficient evidentiary basis for the jury's decision; (2) whether the circuit court erred in permitting appellees to assert claims for damages that would have been payable as royalties to persons not named as parties to the litigation; (3) whether the court erred by refusing to give jury instruction 14A; and (4) whether the circuit court erred in excluding the testimony of appellant's assistant controller because appellant could not provide actual invoices. We affirm the jury's verdict.

On appellate review of jury verdicts, we review the evidence in the light most favorable to the verdict, and we will not disturb the verdict if it is supported by substantial evidence. Donoho v. Donoho, 22 Ark. App. 150, 737 S.W.2d 170 (1987). In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. Smith v. Babin, 317 Ark. 1,875 S.W.2d 500 (1994). In reviewing the evidence, the weight and value to be given the testimony of the witness is a matter within the exclusive province of the jury. Id.

Appellant's first issue is whether there was a legally sufficient evidentiary basis for the jury's decision.1 Appellant argues three sub-issues under this first point: (1) that throughout the trial appellees asked for two conflicting remedies and the jury failed to choose one or the other to award damages; (2) that appellees claimed as damages lost gross profits rather than lost net profits; and (3) that appellees' proof of damages was speculative at best. We will address each sub-issue individually.

The first sub-issue is whether the jury failed to choose between two conflicting remedies in awarding damages. Martin Waelder, appellee Fred Waelder's son, testified that appellees claimed three categories of damages. Their first category of damages was for the cost of laying the pipeline up to the delivery point, which totaled $126,000. The second category of damages included the cost of appellees' supervision of the laying of the pipeline from the delivery point to appellant's plant, which was $20,000, damages of $30,000 for the cost of the litigation brought by AOG, and damages of $6,000 for the cost of the second bore. The third category of damages was for the difference in the contract price and the actual price for which appellees sold the gas from March 1, 1997, to February 28, 2002, which was calculated to be $974,000. The total damages claimed were $1,156,000.

Appellant contends that the first and second categories of damages were based upon disaffirmance of the contract, while the third category of damages was based upon affirmance of the contract, and that the jury did not choose between the conflicting remedies in awarding damages. We cannot agree with appellant's argument. The jury returned a general verdict awarding appellees $487,000. There were no written interrogatories submitted to the jury as permitted by Rule 49 of the Arkansas Rules of Civil Procedure; therefore, we cannot tell under what theory the damages were awarded. When the jury returns a general verdict, we are unable to determine the basis for the verdict. Smith v. Babin, supra. ··²

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²··In the case at bar, the jury received instructions on who had the burden of proof, the jury's duty to interpret the contract, and the consequences in the event the contract is breached. The jury was also instructed that if they found in favor of a party, they must decide how much money, if any, would fairly compensate the party for the other party's failure to keep its promise. It is not this court's province to retry issues of fact but to examine the record to determine if there is substantial evidence to support the verdict. Smith v. Babin, supra. There is no evidence that appellee was awarded damages on both theories, and the general verdict is consistent with the evidence presented. The jury was presented with many types of damages and with instructions on how to weigh that evidence, and we cannot say that there was not sufficient evidence to support the verdict.

The next sub-issue is whether appellees claimed as damages lost gross profits rather than lost net profits. Under the third category of damages, appellees put on proof of what they would have been entitled to under the contract had it been performed less the differenceof what it cost them to sell the gas to someone else. This method for calculating damages is allowed pursuant to Ark. Code Ann. § 4-2-706 (Repl. 1991), and appellant made no objection to appellees' proof on this point or to the instructions on damages given by the court. We cannot say that there was any error with respect to this issue.

The third and final sub-issue is whether appellees' proof of damages was speculative. Appellant argues that the evidence appellees put forth regarding the supervision of the pipeline from the delivery point to the Van Buren plant, the costs of defending the action brought by AOG, and the costs associated with the second bore were speculative. Appellant does not argue that all the proofs of damages were speculative, but argues that only some of them were. When the jury returns a general verdict, as in this case, we are unable to determine the basis for the verdict. Smith v. Babin, supra. We cannot say that the evidence was insufficient to support the verdict.

The second main issue is whether the circuit court erred in permitting appellees to assert claims for damages that would have been payable as royalties to persons not named as parties to the litigation. Appellees admitted that they have payment obligations to their royalty holders under the terms of the contract, but they contend that they, not the royalty holders, are the real parties in interest to the contract. However, even if the royalty holders were deemed to be real parties in interest, Rule 17(a) of the Arkansas Rules of Civil Procedure provides, in pertinent part:

At no time did appellant make an objection to the trial court that the royalty holders had not been made parties to the lawsuit. If indeed there was a misjoinder of parties in the instant case, appellant's failure to object to such defect in the proper time and manner waived the issue. See Province v. Dean, 223 Ark. 508, 266 S.W.2d 812 (1954).2

The third issue is whether the court erred by refusing to give to the jury proffered instruction 14A, which stated:

(Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993)).

A trial court's refusal to give a proffered instruction will not be reversed unless there was an abuse of discretion. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). It is not error for a trial court to refuse a proffered jury instruction when the stated matter is correctly covered by other instructions. Id.

In the present case, both parties alleged breach of contract on the part of the other party. Appellant's proffered instruction is based upon an anticipatory repudiation of the contract, which is a type of breach. See Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). However, the jury instructions given, which appellant conceded at oral argument were correct statements of the law, fully instructed the jury on the elements required to sustain a claim of breach of contract. Therefore, because the matter was correctly coveredby other instructions that were given to the jury, the trial court did not err in refusing to give appellant's proffered instruction 14A.

Appellant's last contention is that the trial court erred in excluding the testimony of appellant's assistant controller, which would have established the amount of damages sustained by appellant, because appellant could not provide actual invoices. In support of this point, appellant argues that pursuant to Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985), it is not necessary to produce a record where there is testimony to prove the transaction. In Canady the supreme court stated that the trial court erred in excluding proffered testimony on the basis that there was no physical documentation of a deposit; only where the writing itself must be proved must the writing be produced. Id.

Even if this ruling might have been in error, we will not reverse on this issue because appellant is unable to show it was prejudiced by this ruling. The jury returned a general verdict in favor of appellee. Therefore, any alleged error regarding the failure to allow testimony as to appellant's damages was at most harmless. See Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994); Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). Affirmed.

Hart and Jennings, JJ., agree.

1 Although appellant's counsel at oral argument contended that there was insufficient evidence to support the jury's verdict in favor of appellees, the points argued in its briefs only address the measure of damages.

2 Although this case was decided under prior law, Reporter's Note 2 to Rule 21 of the Arkansas Rules of Civil Procedure states that a defect in the parties remains non-fatal under Rule 21.