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Flandreau Public School Dist. #50-3 v. G.A. Johnson Construction7/13/2005
express warranty of fitness for a particular purpose.
Id. at 522. Relying upon these issues, that contractor contended that the claim really involved breach of contract and negligence, which were not issues of aesthetic effect. However, the Arkansas Supreme Court concluded that the "complaint based upon a question concerning 'aesthetic effect'" despite the underlying issues of failure to comply with plans and specifications, breach of contract, and defective products. Id. at 523. The Arkansas Court reasoned:
If the appearance of the concrete floors was not "totally unacceptable" as the plaintiff contends, then there would be no claim. Granted, the plaintiff's complaint refers to May Construction's negligently supplying a defective product and breach of warranties. However, if the aesthetic effect of the floors was not unacceptable, the product would not be defective and the warranties would not be breached. The plaintiff does not contend that the floor has cracked or been damaged due to defective sealer. Rather, the plaintiff contends the floors began experiencing "unsightly scuff marks." The contract provides "controversies or Claims relating to aesthetic effect" are not subject to arbitration.
Id.
[ .] This reasoning also applies to the Flandreau-Johnson dispute. Like the case in May, a review of Flandreau's complaint and the undisputed facts reveal that Johnson's issues of "breach of contract" and "failure to comply with industry standards" are nothing more than the underlying reasons why Flandreau has an aesthetic claim. Paragraph nine of the complaint reflects that the claim relates to the "finish of the interior." Furthermore, paragraph seventeen only sought damages for the "appearance of plaintiff's building." Therefore, this claim was plainly one for the aesthetic effect of Johnson's work.
[ .] This fact is confirmed by the uncontested affidavit of the school board president. The school board president stated:
The masonry cement block walls of the building look terrible. The primary complaint is the poor appearance of the finished product. The problems with the appearance include but are not limited to an uneven variation of the texture of the block surfaces; chipped blocks, holes in surface texture, flaws in the block, conspicuous patches and apparent efforts to cover up chips and holes in the block; inconsistent tooling joints and poor tooling; variation in the width of tooling joints, some very narrow and some very wide; misalignment of joints and misalignment of the surface of adjacent blocks; joint cracking, inconsistent joint tooling with variations in the joint tooling including joints in the shape of a "V" to concaved tool joints to some joints that appear to have been tooled digitally. In addition, the contractor appears to have used different quality block creating an inconsistent and ugly appearance and, in the gym, changed in the middle of the wall the pattern of laying block from stacked bond to running bond. All of this creates a very poor appearance and appears to be very inferior workmanship.
On two locations within the school building, the new addition attaches to the older structure. It is very easy to stand in those two hallways and compare the quality of workmanship and appearance of those halls in the old building with the new. Clearly, the appearance of the new building is significantly inferior to the originally constructed high school building.
All of this has a substantial negative impact on the aesthetic effect of the building.
(Emphasis added.) And, like the school board president, Flandreau's expert confirmed that this claim only related to aesthetics. The exp
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