Adams v. TDC General Contractors LLC

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
REUBEN L. ADAMS 	PLAINTIFF
v. 	Civil No. 4:22-cv-04110
TDC GENERAL CONTRACTORS LLC 	DEFENDANT
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is TDC General Contractors LLC’s (“TDC”) Motion for Partial Summary
Judgment (Defects). ECF No. 58. Plaintiff Rueben L. Adams’ (“Adams”) has responded to the
Motion. ECF No. 64. 	TDC has also filed a Reply. ECF No. 69. Pursuant to the provisions of 28
U.S.C. § 636(b)(1)(A) and Local Rule 72.1, the Honorable Susan O. Hickey referred this Motion
to the undersigned. ECF No. 72. A hearing was conducted on September 25, 2024, on the instant
motion and it is now ripe for consideration.1
1. 	Background
On April 10, 2019, Adams engaged TDC to provide general contractor services for the
construction and related work of a multiunit residential apartment complex (“the Contract”)
located at 911 Pecorella Street in Texarkana, Arkansas (the “Apartment Complex”). ECF No. 2.
On November 9, 2022, Plaintiff filed this diversity suit alleging TDC failed to perform in a
workmanlike manner in the construction of the Apartment Complex within 180 days of the
contract execution date. In addition to the breach of contract claim, Plaintiff asserts claims based
on negligence, unjust enrichment, promissory estoppel, violation of the Arkansas Unfair Deceptive
Trade Practices Act (“ADTPA”), and negligent hiring, retention, and supervision. Id. On January
1 During the September 25, 2024, hearing, the parties submitted arguments addressing the following motions: Motion
for Summary Judgment filed by Adams (ECF No. 48); Motion for Partial Summary Judgment (Damages) filed by
TDC (ECF No. 51); Motion for Summary Judgment (ADTPA) filed by TDC (ECF No. 54); and Motion for Summary
Judgment (Defects) filed by TDC (ECF No. 58). Each of these motions will be addressed with a separate Report and
Recommendation.
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6, 2023, TDC filed its Answer to Adams’ Complaint admitting it entered a contract with Adams
to construct the Apartment Complex in a workmanlike manner. ECF No. 5. However, TDC denied
all the other allegations made by Adams. Id.
On June 18, 2024, TDC filed the instant motion arguing it is entitled to judgment as a
matter of law regarding any alleged deficiencies in the construction of the Apartment Complex
relating to framing, the retaining wall, and drainage. ECF No. 58. TDC attached the following
exhibits to the motion:
1. 	Plaintiff’s Responses to First Set of Discovery
2. 	Expert Report of Gary Powell
3. 	Expert Report of Jason Bodart
4. 	Letter from Tyler Richards
5. 	Deposition of Reuben Adams
6. 	Deposition of Gary Powell
7. 	Contract
ECF No. 58, 1-7. TDC’s statement of undisputed facts is set forth ECF No. 60 which states in
relevant part:
3. Plaintiff submitted an expert report authored by Gary L. Powell …
4. Gary L. Powell does not have a commercial contract license in the State of
Arkansas.
5. Mr. Powell gave a deposition on April 2, 2024 … Mr. Powell refused to answer
questions during his deposition regarding his opinions and credentials.
6. Defendant submitted a rebuttal expert report authored by Jason Bodart, P.E. …
ECF No. 60.
TDC specifically argues Adams has not presented any evidence to support his claim there
are any structural deficiencies with the Apartment Complex nor has he presented any evidence to
support the damage amounts2 for alleged framing deficiencies, retaining wall, or drainage issues.
ECF No. 58, p. 2. In addition, TDC states it has submitted an expert report which demonstrates the
framing, retaining wall, and drainage of the property are all sufficient and within code. Id. Further,
2 The Court previously issued a Report and Recommendation stating Adams’ s claim for damages for lost profits, at
least at this stage of the litigation is sufficiently reliable. ECF No. 95, p. 7.
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TDC points to a letter prepared by Texarkana Arkansas’s city engineer stating the drainage of the
property is not deficient. Id.
Adams filed his Response to the motion on July 2, 2024, stating TDC’s motion must be
denied because his witness affidavits and expert report establish material facts which are in dispute
regarding the issue of whether TDC provided workmanlike construction. Adams also argues his
damages are factually supported. ECF No. 64. Adams attached the following exhibits to his
Response:
1. 	Duncan Affidavit
2. 	Vaughn Affidavit
3. 	Powell Affidavit
4. 	Plaintiff’s Expert Report
5. 	Defendant’s Expert Report
6. 	Defendant Expert CV
7. 	Plaintiff’s Deposition Transcript
8. 	Sealy Deposition Transcript
9. 	Plaintiff First Discovery Response
10. Supplement Plaintiff Response to Defendant’s Annex
11. Powell Deposition Transcript
ECF No. 63.
TDC filed a Reply to TDC’s Response on July 9, 2024. ECF No. 69. TDC incorporates by
reference its Response to Adams’ Motion for Summary Judgment (ECF Nos. 58-60) and argues in
part in that Response:
Plaintiff 	has 	attached 	evidence 	which 	was 	not 	produced 	in 	discovery 	…
Specifically, the documents attached to Mr. Steve Duncan’s affidavit were never
produced by Plaintiff (with the exception of the building permit at pg. 26). This
Court has broad discretion to exclude evidence as a discovery sanction for late
disclosure … Due to this failure to produce in accordance with the Court’s Final
Scheduling Order (Doc. 36), these documents should be excluded and deemed
inadmissible at trial …Defendant objects on the basis that Mr. Duncan’s affidavit
does not comply with Fed. R. Civ. P. 56(c)(4) as it sets out facts that are not
admissible in evidence. …
ECF No. 62, pp. 2-3.
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In addition, TDC argues Mr. Powell’s affidavit is conclusory and not credible because he
“lacks the necessary qualifications to testify as to the quality of construction on a project that
required a commercial contractor’s license”. TDC also argues Mr. Vaughn’s affidavit is
conclusory and is submitted as an “expert” report. ECF No. 62, p. 5. Although Vaughn was
disclosed as a fact witnesses, he was not disclosed as an expert. TDC argues these affidavits, along
with Mr. Duncan’s, should not be considered by the Court in connection with the instant motion
for summary judgment. Id.
2. 	Applicable Law
Federal courts sitting in diversity generally apply the substantive law of the forum state.
See Holbein v. TAW Enterprises, Inc., 983 F.3d 1049, 1061 (8th Cir. 2020) (citation omitted).
Arkansas substantive law applies because Arkansas is the forum state, Plaintiff’s claims are
pursuant to Arkansas law, and the parties’ arguments presume the application of Arkansas law.
However, federal procedural law governs the procedural standards for diversity cases. Smith v.
Toyota Motor Corporation, 964 F.3d 725, 728 (8th Cir. 2020).
The standard for summary judgment is well established. A party may seek summary
judgment on a claim, a defense, or “part of [a] claim or defense.” Fed R. Civ. P 56(a). When a
party moves for summary judgment, “[t]he court shall grant summary judgment if the movant
shows there is no genuine dispute as to any material fact, and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Krenik v. County. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995). This is a “threshold inquiry of … whether there is a need for trial – whether, in other words,
there are genuine factual issues that properly can be resolved only by a finder of fact because they
reasonably may be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986). A fact is material only when its resolution affects the outcome of the case. Id. at p.
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248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a
verdict for either party. Id. at p. 252.
In deciding a motion for summary judgment, the Court must consider all the evidence and
all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving
party. 	Nitsche v. CEO of Osage Valley Elec. Co-op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. See Enterprise Bank v. Magna Bank of Missouri, 92 F.3d
743, 747 (8th Cir. 1996). The nonmoving party “may not rest upon mere allegations or denials …
but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S.
at 256.
3. 	Discussion
A hearing was held before the Court in this matter on September 25, 2024. The parties
presented their arguments. Although counsel for TDC objected to the admissibility and use of
several of Adams’s supporting witness affidavits, and informed the Court he would be filing
motions to exclude the affidavits, at this juncture in the proceedings, the Court will consider
Adams’s affidavits submitted by Mr. Vaughn and Mr. Powell in support of his Motion for
Summary Judgment.3
In his affidavit Mr. Vaughn states in part:
As both a commercial & residential general contractor, architectural designer, and
real estate developer, I am familiar with the role that architectural and engineer-
approved construction documents, such as those for the electric, plumbing, HVAC,
structural, 	and 	site 	development 	of 	building 	construction, 	play 	in 	building
construction…
3 By considering these affidavits in the context of the instant motion for summary judgment the Court makes no
determination as to whether these witnesses will be allowed to testify at any future proceeding, including a trial in this
matter. Currently pending before Judge Hickey are three motions in limine to exclude the testimony of Powell,
Vaughn, and Duncan. ECF Nos. 86, 88, 90. Because, the Court is concerned that Mr. Duncan was never properly
disclosed as a witness, the Court will not consider his affidavit in making a recommendation on the instant motion .
Again, the Court makes no determination as to whether Mr. Duncan will be allowed to testify at any future proceeding,
including a trial in this matter.
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… I am familiar with the role of varied project management tools and how they can
play in managing construction activities for the timely completion of building
construction services…
… I am familiar with the workmanlike standards both construction service and
professional performance…
… Based on my construction credentials and experience, I am of the view that
construction, and/or the supervision/ oversight of such construction, of the Pearlene
Place 5-plex in the absence of component-specific architectural and engineer-
approved construction documents, such as those for electric, plumbing, HVA,
structural, and site development components of such building construction, if not
established pre-construction, is not workmanlike…
… Based on both my observation and by evidence verbally described, and photos
provided by Reuben and Marvin Adams, considered in the context of my
construction credentials and experience, I am of the view that construction of the
Pearlene Place 5-plex and/or he supervision or oversight of such construction is not
workmanlike…
ECF No. 64-2.
Mr. Powell, Adams’s retained expert witness also submitted an affidavit and expert witness
report which states in part:
…In my opinion, because plans and or blueprints are essential to a workman like
performance, no competent general contractor would provide construction services
for the Pearlene Place project without plans and or blueprints with specification for
various phases of the construction, such as framing, topography, electrical,
plumbing and foundation. All these plans and blueprints come with various
measurements and specifications that are vital to proper residential and commercial
construction. These documents are required to obtain valid building permits. TDC’s
failure to obtain these plans and or blueprints is not workman like…
…In my opinion, TDC’s failure to provide (1) proper framing (2) adequate drainage
for the building (3) Fire retardant walls between each unit (4) properly built
retaining wall, satisfying Industry standards of which my 45 years of experience
informs me, demonstrate an absence of workman like service…
…In my opinion the following deficiencies not listed in Exhibit B that I observed
during my inspection of the property (1) swaging spots in the roof, possibly due to
inadequate decking, rafter spacing or bracing (2) AC unit placement, units on the
back patio slab too close to backdoor (3) Absence of expansion joints between slab
and patio slabs leaving a Crack (4) Inadequate caulking around windows and doors
(5) Plumbing underneath kitchen sinks, 4 inch drain pipes under sinks outside the
walls (6) Brick installation, absence or missing steel plates above windows
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supporting bricks and missing mortar, all these deficiencies do not comply with
Industry standards about which my 45 years of construction experience informs me
and consequently are the product of an absence of workman like service and or
quality…
ECF No. 64-3.
As previously stated in the Report and Recommendation issued by this Court on October
16, 2024, on Adams’s Motion for Summary Judgment (ECF No. 94), based on the summary
judgment record it is abundantly clear almost every allegation made by the parties is disputed. The
issue at the core of the litigation – whether TDC performed in a workman like manner, is certainly
a factual issue which should be determined by the fact finder. Accordingly, the Court finds Adams
has come forth with sufficient evidence to establish there are genuine issues of disputed material
facts for trial which preclude summary judgment for TDC. Likewise, the Court finds Plaintiff’s
claim for damages is a reasonable estimate at this juncture of the proceedings and is certainly an
issue for the finder of fact to determine.
4. 	Conclusion and Recommendation
Based upon the foregoing, the Court recommends TDC’s Motion for Summary Judgment
(ECF No. 58) be DENIED.
The Parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
DATED this 30 th day of October 2024.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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