ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

KERRY LEIGH REMER and

FARMERS & MERCHANTS BANK

APPELLANTS

V.

TOM JANUARY FLOORS, INC.

APPELLEE

CA 02-1051

AUGUST 27, 2003

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. E-2001-1549-1]

HONORABLE WILLIAM A. STOREY,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Kerry Leigh Remer hired appellee Tom January Floors, Inc., to install vinyl flooring in her home. The work began on September 8, 1997, and was substantially completed by September 26, 1997. The appellee filed a notice and account of lien on January 20, 1998, and the notice reflected a deposit of $1950.00 and a balance due of $5247.55. On August 1, 2001, appellee filed a complaint on materialmen's lien, alleging that Ms. Remer had paid nothing toward the balance due. Ms. Remer filed a counterclaim for breach of contract and breach of warranties, asserting that the appellee failed to complete the job in a workmanlike manner.

After a trial, the trial court awarded Tom January Floors judgment in the amount of $5247.451 plus interest, as well as $3113.25 in attorney's fees, and granted foreclosure. The trial court dismissed Ms. Remer's counterclaim.

Ms. Remer now appeals, raising two arguments for reversal. First she contends that the trial court lacked subject-matter jurisdiction to enforce appellee's lien because appellee failed to comply with Ark. Code Ann. § 18-44-119 (1987), which requires such actions to be commenced within fifteen months after filing the lien. Next, Ms. Remer argues that the trial court erred in finding that she failed to sustain her burden of proof in her counterclaim. We affirm.

Kathy January, part owner of Tom January Floors, testified for the appellee. She stated that the appellee furnished and installed sheet vinyl and underlayment in Ms. Remer's home. Mrs. January testified that the total charge for the job was $7197.55, and that the appellee received nothing from Ms. Remer beyond the $1950.00 deposit. According to Mrs. January, she never received any complaints from Ms. Remer after the job was completed.

Tom January was qualified as an expert in floor installation, and he also testified for the appellee. He testified that Austin Edens was in charge of installing the floor and that, due to deterioration, plywood needed to be put down first. Mr. January stated that quarter-inch plywood was installed with an air nailer using 6D nails.

Mr. January indicated that the floor was substantially finished on September 26, 1997. After that date, new thresholds needed to be installed, and the floor needed to be sealed. Mr. Edens was sent to Ms. Remer's home to complete this work on October 3, 1997. However, on that day Ms. Remer was not satisfied with the thresholds that were being proposed, so Mr. Edens did not install the thresholds or seal the floor because he "was going to do it all at one time." After that, Mr. Edens did not finish the work, and Mr. January asserted that this was because Ms. Remer was not being cooperative. He stated that he attempted unsuccessfully to contact Ms. Remer and get an appointment to put in the thresholds and seal the floor over the next couple of months. Mr. January testified that on December 17, 1997, Mr. Edens went to the house and informed Ms. Remer that the floor seams needed to be sealed or the floor would eventually curl, but that Ms. Remer would not let him seal the floor. The last time Mr. January met with Ms. Remer was on December 29, 1997, at which time she again refused to allow the sealing of the floor. Mr. January stated that at that time, the floor was in good condition. However, due to the fact that the sealing was never completed, the floor eventually curled up as predicted.

Mr. January inspected the floor on May 22, 2002. In addition to the floor curling up, he observed bumps in the floor. He gave the opinion that the bumps were caused by water. On this matter, Mr. January testified:

I know the moisture problems were discussed with her father, he was the man on site when she was probably working and he said that he told Austin that was fine, that they would deal with it, and that they would trench it off. I can't tell you that that ever happened. The water is trapped under there and has no place to go. There is nothing that Austin could have done different to combat the water problem. He told them that they had a problem and it was his responsibility to deal with the water problem[.]

. . . .

They were asked or explained to five years ago that there was water under the house and they explained to us that they would deal with getting rid of it. I'm not convinced that they made any effort to get rid of the water from around the house and I'm being blamed for bad floor for something else that's contributing to it.

Mr. Edens corroborated Mr. January's testimony that Ms. Remer was informed that there was a water problem that needed to be taken care of. He also corroborated Mr. January's testimony that he attempted to seal the floor seams, but Ms. Remer would not allow him to do it. According to Mr. Edens, Ms. Remer was unhappy about the situation involving the thresholds and she refused to let him do any more work.

Ms. Remer testified on her own behalf. She stated that she was unhappy because the appellee failed to install special thresholds to accommodate her mother who was in a wheelchair. She further was unhappy because the job was supposed to take only a few days, but instead the work took almost three weeks. Ms. Remer stated that she has installed floors in the past and always put the floor down using glue and screws. She stated that her floor was installed rapidly with a nail gun, and that she had never seen it done in that manner.

Ms. Remer maintained that there was a problem with the floor immediately. She testified that she complained many times to Mr. January, and that she literally begged them to seal the floor. According to Ms. Remer, she was told they were out of sealer and were busy with other jobs. She further stated that nails were popping through the subfloor, and that she was told by Mr. January to nail them down with a hammer. Ms. Remer denied having a water problem, and indicated that her father put French drains under the house shortly after the floor was installed. Ms. Remer testified that within one month of installation, the vinyl flooring was lifting up and causing people to trip.

Ms. Remer's father corroborated her testimony. He stated that a French drain was put in around the entire house, and that the seams of the floor were a half-inch to an inch high and caused him to fall three times.

Jason Yount, sales manager for one of appellee's competitors, testified that the floor was not installed properly. He stated that the seams should have been sealed within a week of installation and that screws should have been used on the subfloor instead of nails. Mr. Yount testified, "The problems that Ms. Remer is now experiencing is a result of poor workmanship."

Ms. Remer's first argument for reversal is that the trial court lacked subject-matter jurisdiction because Tom January Floors failed to comply with Arkansas Code Annotated section 18-44-119 (1987), which provides:

All actions under this subchapter shall be commenced within fifteen (15) months after filing the lien and prosecuted without unnecessary delay to final judgment. No lien shall continue to exist by virtue of the provisions of this subchapter for more than (15) months after the lien is filed, unless within that time an action shall be instituted as described in this subchapter.

Ms. Remer asserts that, because appellee filed its notice of lien on January 20, 1997, and waited until August 1, 2001, to file its complaint on materialmen's lien, the lien ceased to exist under the above statute. Although Ms. Remer failed to raise this argument below, she nonetheless argues that it can be raised on appeal because it is a challenge to the subject-mater jurisdiction of the trial court. The issue of subject-matter jurisdiction cannot be waived, and can be raised for the first time on appeal. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001).

We hold that Ms. Remer's first argument is not preserved for review because it was not raised below. While she contends the trial court lacked subject-matter jurisdiction, we disagree. We discussed subject-matter jurisdiction in Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987), as follows:

The rule of almost universal application is that there is a distinction between want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.

Id. at 149, 737 S.W.2d at 170.

The trial court in the present case was conferred jurisdiction by Arkansas Code Annotated section 16-13-304(c) (Repl. 1999), which provides, "The chancery court of the county where the property is situated on which a lien is created under § 18-44-101 et seq. is attached shall have exclusive jurisdiction to enforce the lien." We are not persuaded by Ms. Remer's argument that the failure of a lienholder to file an action within fifteen months of filing his lien deprives the trial court of subject-matter jurisdiction.

Ms. Remer cites Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998), and Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1979), for the proposition that Arkansas Code Annotated section 18-44-119 (1987) is a statute of repose and not merely a statute of limitation. However, neither of those cases even mention the above statute, much less say anything about whether failure to comply with the statute deprives a trial court of subject-matter jurisdiction. We will not consider arguments made for the first time on appeal, including arguments raising a statute of limitations as a defense. See Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987). Because Ms. Remer failed to apprise the trial court of her argument that the limitation period barred appellee's complaint, we decline to address the argument on appeal.

Ms. Remer's remaining argument is that the trial court erred in finding that she failed to prove breach of contract and breach of warranties. She asserts that the floor installation was not properly completed. Ms. Remer notes that it is undisputed that the floor was not sealed, and further contends that proper thresholds were never installed. Ms. Remer argues that nails were used instead of screws, causing the nails to pop up. She further asserts that French drains were installed to keep moisture from the floor, but that it nevertheless quickly deteriorated. Ms. Remer directs us to expert testimony that the job was not completed in a workmanlike manner. Based on the evidence presented, she argues that the trial court erred in failing to award damages on her counterclaim.

In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the trial court's findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). Disputed facts and determinations of credibility of witnesses are within the province of the factfinder. Knight v. Day, 343 Ark. 402, 36 S.W.3d 300 (2001).

We hold that the trial court's decision to dismiss Ms. Remer's counterclaim was not clearly erroneous. While she presented evidence that the floor installation was not properly done and that the appellee failed to seal the seams pursuant to her requests, there was evidence to the contrary. While the failure to seal the floor caused problems and there were problems with the thresholds, there was testimony that these problems were due to Ms. Remer's repeated refusal to allow the appellee to finish the job. Mr. January testified that the floor was still in good condition when Ms. Remer prevented them from sealing it. Moreover, the trial court was entitled to credit the testimony of Mr. January that the cause of deterioration was not poor workmanship, but rather moisture underneath the floor. While Ms. Remer presented evidence that nails should not have been used in the installation, the appellee presented testimony that this was customary and the proper way to install a floor. In sum, there was contrasting testimony on the allegations made by Ms. Remer. Because we defer to the trial court is assessing the credibility of the conflicting testimony, we are not convinced that it committed a mistake in ruling that Ms. Remer failed to prove a breach of contract or breach of warranties.

Affirmed.

Pittman and Hart, JJ., agree.

1 There is no explanation as to the discrepancy between the $5247.45 awarded by the trial court and the balance due of $5247.55.