Full Opinion

Cite as 2026 Ark. App. 527 ARKANSAS COURT OF APPEALS DIVISIONS III & IV No. CV-25-449 Opinion Delivered November 4, 2026 TATUM YOUNT AND KENNETH CARTER APPEAL FROM THE CALHOUN APPELLANTS COUNTY CIRCUIT COURT [NO. 07CV-23-56] V. HONORABLE SPENCER G. ICOR CONSTRUCTION, LLC SINGLETON, JUDGE APPELLEE AFFIRMED N. MARK KLAPPENBACH, Chief Judge Appellants Tatum Yount and Kenneth Carter appeal the Calhoun County Circuit Court’s judgment in favor of ICOR Construction, LLC. Appellants argue that the circuit court erred in finding that the statute of frauds did not apply to the parties’ contract and erred in excluding expert-witness testimony. We affirm. In October 2023, ICOR filed suit against Yount and Carter alleging breach of contract and unjust enrichment. According to ICOR, the parties entered into a contract on May 31, 2022, for ICOR to construct and install a building on Carter’s property for $79,140. Attached to the complaint was a copy of the quote to which appellants agreed, which included a list of services and a price breakdown. Appellants paid a 50 percent deposit. Appellants later requested that ICOR not perform some of the contracted-for services. ICOR completed the agreed-upon work and requested payment of $17,420, which ICOR alleged that appellants had failed to pay. In their answer, appellants asserted that no contract was entered into by the parties. However, appellants also filed a counterclaim for breach of contract, asserting that there was a contract for the sale of goods covered by the Uniform Commercial Code (UCC), that ICOR had failed to provide a conforming good, and that appellants should be reimbursed all money paid to ICOR. The case proceeded to a bench trial. Two ICOR employees testified about the work they did on the project to prepare the site, install a concrete slab, and construct a pole barn and the steps they took to ensure the work was level, square, and plumb. ICOR’s owner, Steve Ivy, testified that he inspected the work and noted no deficiencies. Ivy explained that the appellants intended for the pole barn to be used as a residence, but ICOR was only contracted to construct the exterior. Appellants and their witnesses testified that the concrete slab was not level or square; some of the trusses were not centered on posts; there were missing screws; a wall had bowed; and the ceiling was not nine feet tall as requested. In posttrial briefs, the parties disputed whether the statute of frauds applied. Appellants argued, in part, that the parties had a contract for the sale of goods for more than $500, and as such, the statute of frauds of the UCC required that the contract be in writing 2 and signed by the parties.1 ICOR responded that the parties’ contract for the construction of a pole barn was a contract for services, not for goods. The circuit court concluded that the statute of frauds was not applicable upon finding that the primary purpose of the agreement was for the construction of a pole barn that defendants intended to turn into a residential dwelling. It was not for the sale of goods . . . . Where the primary purpose of the agreement is to build a structure and not the purchase of goods, the Uniform Commercial Code does not apply. The court further found that ICOR met its obligations under the contract, noting that it found credible the testimony of ICOR’s witnesses as to the workmanship of the building. The court found that appellants had breached the contract by refusing to pay the remaining sum due for the work completed. The court awarded ICOR judgment in the amount of $17,420 plus $2500 in attorney’s fees. Appellants first argue that the circuit court clearly erred in finding that the contract was one for services and not goods. Our review is de novo. Hodges v. John F. Jenkins Contracting, Inc., 98 Ark. App. 125, 252 S.W.3d 152 (2007). The UCC applies to “transactions in goods” but does not apply to the sale of services. Church on the Rock - Texarkana v. Ace Signs of Ark., LLC, 2025 Ark. App. 35, at 4, 706 S.W.3d 734, 737–38. When 1 “Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.” Ark. Code Ann. § 4-2-201(1) (Repl. 2020). 3 faced with hybrid contracts involving both goods and services, we apply the predominant- factor test to determine whether the purpose of the contract is (1) the rendition of service, with goods incidentally involved or (2) a transaction of sale, with labor incidentally involved. Id. In determining the predominant factor of a contract, we can look at the language of the contract, the manner in which the transaction was billed, and the mobility of the goods. Id. The accepted bid here provided that “ICOR proposes to furnish the labor, tools, material, equipment and supervision for installing a new building at your property in Harrell, AR with the following clarifications.” The completed items in the bid include the following: 1. ICOR will haul, spread and compact clay gravel to achieve the necessary grade for the building to be installed. This is a revised location that will not require any clearing. 2. ICOR will install the new 40’x40’x10’ building with a 10’ gable extension on the front, a 10’ gable extension on the back. The building will be wood frame with a steel roof structure, the outside will be painted metal panels. .... 5. ICOR [will] install a 40’x40’ concrete slab for the building and concrete for two gable extensions, all concrete will be reinforced with wire and plastic laid as a moisture barrier. 6. ICOR will have the concrete slab area treated for termites before the concrete is poured. The bid listed the total price of the building as $79,140 with the following price breakdown: Civil/Concrete $14,495 Building $42,495 Foam Insulation $9,900 4 Electrical Service $8,475 Water Supply $3,775 Ultimately, appellants requested that ICOR not perform the last three items from the price breakdown, but the first two were performed. Appellants do not point to any language in the bid as indicative of a contract for the sale of goods, but they argue that the manner of billing and mobility of the goods show that the predominant purpose was the sale of a pole-barn kit. Ivy testified that ICOR ordered a pole-barn kit for the project that came with vertical posts, wall girts, trusses, purlins, and all of the metal for the building exterior. When examining the manner in which the transaction was billed, we have noted two factors that indicate a contract is for the sale of goods: (1) when the contract price does not include the cost of services or when the charge for goods exceeds that for services; and (2) when the contract calls for the payment of one price for the finished product rather than multiple payments based on services. Church on the Rock, supra. Appellants argue that the majority of the contract price was for materials, i.e., the pole-barn kit. While the bid’s price for “Building” was more than half of the total cost, Ivy testified that he did not know the price of the kit itself because he had not been asked to provide that. He said that the bid did not state how much of the total price was for goods and how much was for labor or services, but his general rule of thumb was “forty percent is material, fifty percent is labor, and ten percent is equipment.” Accordingly, because the contract did include the cost of services, and the cost of goods did not exceed that of services, the billing does not indicate a 5 contract for the sale of goods. Furthermore, the billing for different services rather than one payment for the finished product indicates that this was not a contract for the sale of goods. A contract involving movable goods is another hallmark of a contract for goods rather than services. Church on the Rock, supra. Mobility is measured as of the time the goods are identified to the contract rather than after the contract is completed. Id. Consequently, equipment or materials that were movable, but were installed and became immobile fixtures as part of the contract, are still “movable” within the UCC’s meaning. Id. Thus, contracts for the sale and installation of equipment are frequently (but not always) held to be transactions in goods. Id. Construction contracts, however, such as those for construction of a swimming pool or house, are usually held to be transactions in services. Id. Although construction contracts typically involve materials that qualify as goods (such as concrete or roofing tiles, for example), the services element of such contracts is usually held to be dominant. Id. Appellants argue that the pole-barn kit was movable when it was ordered. While the contract did involve building materials, we hold that the services element is dominant. The parties initially agreed that ICOR would prepare the site, install a concrete slab, install a wood and metal building, install foam insulation, install electrical service, and install a water line. This was a construction contract with the predominant factor being the rendition of services. See Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973) (holding that an agreement to install tile in a home was a service contract even though the tile to be purchased and furnished by the tile setter constituted goods). Because the contract was not a 6 transaction in goods, we affirm the circuit court’s finding that the UCC and its statute of frauds does not apply. For their second point on appeal, appellants argue that the circuit court abused its discretion in refusing to allow Chad Herman to testify as an expert. While being questioned by ICOR, Herman testified that he does “small repair work” for a living. When asked if he does “any construction from the inception,” Herman said that he did from “time to time,” but he was not supposed to because he did not have the unlimited contractor’s license required for jobs over $50,000. On examination from appellants’ attorney, Herman testified that he had been in the construction business his whole life; that he has a limited contractor’s license; and that he has done slab work and built pole barns. Appellants’ counsel argued that Herman should be qualified as an expert by his licensing and his experience. After further examination from ICOR’s attorney, however, Herman admitted that he had never had a contractor’s license because he could not pass the test. He said that he had worked under his late wife’s license. The court denied appellants’ request to qualify Herman as an expert. After appellants clarified that Herman should be qualified on the basis of his experience, the court again denied the request. Appellants then proffered a letter from Herman in which he opined that the cost for labor and materials to replace bent metal on appellants’ building was $8700. He also opined that the building would have to be rebuilt to achieve nine-foot ceilings and to get the slab square. Herman testified as a lay witness that he saw the following: the building’s slab was misleveled; a section of the metal had come loose from the building; loose screws; and leaning walls. 7 On appeal, appellants argue that the circuit court abused its discretion in failing to qualify Herman as an expert on the basis of his experience. Arkansas Rule of Evidence 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Whether a witness qualifies as an expert in a particular field is a matter within the circuit court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Hill v. Billups, 92 Ark. App. 259, 212 S.W.3d 53 (2005). Although he initially testified that he did have a license, Herman eventually admitted that he had, in fact, never held a contractor’s license because he could not pass the required test. He said that his current business was in unspecified “small repair work” and that he had built a pole barn before, but he did not indicate how much experience he had in this type of construction. Under these circumstances, we cannot say that the circuit court abused its discretion in failing to qualify Herman as an expert witness. See Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2000) (affirming the exclusion of an expert witness who never investigated the job site, was not a licensed engineer or medical doctor, and did not hold a four-year degree from any institution, despite his past claims to the contrary). Affirmed. ABRAMSON, GLADWIN, and MURPHY, JJ., agree. VIRDEN and THYER, JJ., dissent. 8 BART F. VIRDEN, Judge, dissenting. Today, the majority has done one of two things. It has either rewritten Rule 702 of the Arkansas Rules of Evidence to now require a professional license to qualify as an expert witness, or it has imputed a reasoning for a circuit court’s ruling from thin air, neither of which we should abide by. For these reasons, I must respectfully dissent from the majority opinion’s to affirm the circuit court’s refusal to allow Chad Herman to testify as an expert. Herman testified that he does “construction from the inception, the whole building.” He explained he does not hold an unlimited license because he could not pass the written test, and his deceased wife had held the license for the company after she passed the test. Herman explained that his father had been a contractor and built “big homes,” and he had worked in construction since he was fourteen years old—about thirty-five years of experience. Herman testified that he had built pole barns to be used as residential homes from framing to completion; he had done slab work, metalwork for the outside of the home, and sheetrock; and he owned and ran a five-star small business. After the court allowed Herman to testify about his licensure issues and his practical experience in the field of construction, the following colloquy took place: COUNSEL: Your Honor, he can repair a home. He has built homes before. He has built pole barns before. He can identify through his experience the deficiencies. You can be an expert based upon experience, or professional training, either or. .... 9 COURT: In the industry of contracting, there is a standard that you have a licensed contractor in this type of scenario. I can’t qualify him as an expert. So your request to do so is denied. COUNSEL: I’m not offering him as a licensed contractor, Your Honor. I’m offering him as someone with experience in building pole barns and identifying problems and repairing them. He has testified that he repairs buildings all of the time. COURT: I am going to deny your request to identify him as an expert. There can be no other rational reading of the court’s ruling—i.e., “I can’t qualify him as an expert[,] [emphasis added]” other than the court’s agreeing with counsel for ICOR. Keep in mind that the party who seeks to prevent the testimony has the burden of proof to disqualify the witness. Here, ICOR’s sole basis for its challenge to Herman’s designation as an expert was that the witness does not have a particular level of contractor’s licensure. ICOR put forth no other reason, and the court did not find Herman lacked any other qualifications. The court mistakenly determined that it was prevented from qualifying Herman because it believed that “in the industry of contracting,” a specific type of licensure is required “in this type of scenario.” In Coca-Cola Bottling Co. of Memphis, Tennessee v. Gill, 352 Ark. 240, 262, 100 S.W.3d 715, 729 (2003), our supreme court held that Rule 702 does not condition the admissibility of an expert’s testimony solely on the expert’s professional accolades or lack thereof.; John Parker Constr. Co. v. Aldridge, 312 Ark. 69, 847 S.W.2d 687 (1993) (experts may be qualified by experience, knowledge, or training, and need not be licensed professionals); see also, e.g., Tank v. C.I.R., 270 F.2d 477 (6th Cir. 1959) (absence of certificates, memberships, and other professional honors does not in and of itself make a witness incompetent as an expert.); Dickerson v. Cushman, Inc., 909 F. Supp. 1467 (M.D. Ala. 1995) (lack of degree or license in professed area of expertise goes to weight of expert’s testimony, not its admissibility). 10 Here, the court’s refusal to qualify Herman solely on the basis of his lack of an unlimited license is reversible error. Moreover, Herman’s testimony showed that he has experience in the construction of pole barns and construction in general—knowledge beyond that of ordinary knowledge. In fact, pole-barn construction is within Herman’s area of expertise, and it was an abuse of discretion to refuse to qualify him. Due to Herman’s exclusion as an expert witness, Yount and Carter were prevented from presenting two crucial parts of their claim—that ICOR’s construction was faulty and below industry standards, and the only way to fix the construction problems was to tear down the structure. Herman’s testimony would have assisted the court in determining the ultimate questions in the case; thus, the court’s exclusion of Herman’s expert testimony resulted in prejudice. I would reverse and remand. THYER, J., joins. Thomas Law Firm, PLLC, by: F. Mattison Thomas III, for appellants. Stone Law Firm, PLLC, by: Phillip A. Stone, for appellee. 11