Cite as 2026 Ark. App. 386
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-25-361
SHAYNE MCKINNEY Opinion Delivered September 2, 2026
APPELLANT/CROSS-APPELLEE
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. 66FCV-22-1104]
PARK PLAZA PROPERTIES, LLC
APPELLEE/CROSS-APPELLANT HONORABLE GUNNER R. DELAY,
JUDGE
AFFIRMED ON DIRECT APPEAL;
REVERSED AND REMANDED IN
PART AND AFFIRMED IN PART ON
CROSS-APPEAL
MIKE MURPHY, Judge
Appellant Shayne McKinney appeals from the February 27, 2025 judgment that
found him, Jeremy Saul, and their company, Arbor Vitae Corporation (collectively, “the
tenants”), in breach of contract. The landlord, Park Plaza Properties, was awarded a judgment
against them, jointly and severally, in the sum of $51,336.45. Park Plaza cross-appeals from
the judgment. On appeal, McKinney argues that the circuit court erred in finding that the
parties modified the lease’s effective date; that Park Plaza did not breach the lease; and that
the tenants breached the lease. On cross-appeal, Park Plaza argues that the court erred in
precluding recovery of reletting costs of $143,777.60 and in precluding its unjust-enrichment
claim at trial.
I. Facts and Procedural History
McKinney and Saul formed Arbor Vitae Corporation to operate a hyperbaricpressure-treatment business. On January 22, 2022, the parties executed a three-year written
lease for Suite 128 at Park Plaza Shopping Center with a monthly rent of $2,355.01 and a
stated effective date of February 1, 2022. McKinney and Saul executed personal guaranties.
The lease contained a no-oral-modification clause requiring all amendments to be “in writing
and signed by the parties.”
The lease provided that Park Plaza bore responsibility for the following
improvements, referred to as “landlord’s work,” before the effective date of the lease: (1)
ensuring the HVAC system was working correctly and replacing filters as needed; (2)
checking all plumbing and systems to ensure correct operation; and (3) providing re-key
services. Park Plaza was also to maintain the “structural soundness of the floors and walls”
in good order and condition. The tenants otherwise accepted the premises “as-is.”
On January 28, 2022, Park Plaza’s manager, Brian Carroll, emailed McKinney, stating
that construction delays due to COVID material shortages made the February 1 date
unworkable. Carroll proposed postponing rent and modifying the lease term to March 1,
2022, through February 28, 2025. McKinney responded within the hour, stating, “I
appreciate your efforts,” asking about the electrical subpanel, and stating he would get the
guaranties notarized. No additional signed written amendment was executed.
On February 28, Carroll again emailed McKinney, noting continued delays and
proposing two additional months on the back end of the lease term, with no rent due until
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the bathrooms and power panel were finished, making the start date May 1. McKinney
replied: “I was planning to request exactly that so you beat me to the punch. Thank you very
much for working with me on this.” Again, no additional signed written amendment was
executed.
Ultimately, the tenants were unable to open; they acknowledged they never paid rent.
On June 28, 2022, Park Plaza demanded the tenants immediately remit three months of
unpaid rent. On August 4, 2022, Park Plaza sent a demand letter with notice to vacate. The
tenants vacated the premises and signed all necessary permits to Park Plaza.
On December 8, 2022, Park Plaza filed suit seeking to recover from the tenants’
breach of contract. The tenants counterclaimed, alleging Park Plaza breached the lease when
it failed to provide a working HVAC or bathrooms prior to the lease’s effective date. Park
Plaza alternatively alleged claims of unjust enrichment and promissory estoppel. Concerning
these causes of action, the court granted the tenants’ motion for judgment on the pleadings
and dismissed these claims, finding, “The alternative theories of unjust enrichment and
promissory estoppel can only be considered in the event there is not an enforceable contract
between the parties.”
A bench trial was held on January 31, 2025, on the parties’ competing breach-ofcontract claims.
Carroll testified that he owns Park Plaza Shopping Center with his wife and that he
lives in Virginia. He testified that, according to the lease, he agreed to ensure the HVAC
system was working, to ensure correct operation of the plumbing, and to provide re-key
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services. He also said that he agreed to construct ADA-compliant bathrooms and a mop sink
even though this was not explicitly required by the lease. He explained that the City required
it before a tenant could occupy a public-facing retail space. He allowed McKinney to select
premium tiles and fixtures for the bathrooms. He explained the landlord’s work totaled
$107,781.91.
Carroll testified that the HVAC units were “fully functioning” but admitted he had
not personally been on site to inspect them. His basis for believing they worked was that they
were functional when the previous tenant occupied the space eight years earlier. He also said
Blaylock Heating and Air had inspected the system in April 2022 and found it to be
functional.
Carroll maintained that the floors were structurally sound and that ensuring
structural soundness—not occupancy readiness—was his only obligation. He denied the floors
needed repair under the lease and stated he received no written notice from the tenants
about any floor condition.
Regarding the amount of damages, he testified he sought $107,781.91 for the amount
he expended to complete the landlord’s work; $5,600.00 in demolition costs to make the
space available for viewing by another tenant; $45,736.45 in back rent; and $143,777.60 for
costs to relet the space to the neighboring tenant.
Tony Leraris testified that he was the architect hired to work on the bathroom project,
and he drafted renderings for the space at McKinney’s request. He testified that when he
saw the property in April 2022, “the HVAC was done to the extent that it could be
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completed” by Park Plaza. He explained that the mechanical unit was on the roof, the
opening through the roof was visible, and ductwork connections were laid out in the
drawings. However, he said the unit could not be finalized until the tenants completed their
interior framing and sheetrock because the ductwork had to be run after the stud walls were
in place. He confirmed he never personally went onto the roof to inspect it. He testified that
the bathrooms were completed in April 2022.
Jon Nipp, the project manager over the bathroom renovation, testified that the
project was completed on April 21, 2022. He said he and his team did not touch the HVAC
system. He testified that he saw the tenants begin working on the flooring early on and begin
framing toward the end of the bathroom project in April. The tenants had epoxied the
existing concrete floor throughout the entire space except for the restrooms and break room.
McKinney testified that the business had customers lined up for March 2022, and
they needed to open quickly. McKinney testified that he and his contractor, Mike Johnson,
began discussing plans before the lease was signed and that he began framing shortly after
the lease was signed. McKinney’s flooring contractor also began work quickly after the lease
was signed. McKinney acknowledged that early on, Leraris informed him that a building
permit would be required, which halted construction.
McKinney testified that before responding to the January 28 email, he had a phone
call with Carroll in which he told Carroll that delaying the start date was contrary to the
lease and that he was “pretty pissed off” but was trying to phrase his email response positively.
He followed up by testifying that he did not see a way to move forward except to stay the
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course because he had already spent so much money. At one point, he testified that he “had
not even thought of the lease” when he sent the emails and that he did not believe the parties
were in agreement.
McKinney testified that the HVAC system needed more than just ductwork; he stated
the HVAC system had no thermostat, making the system “literally not workable.” He stated
ductwork was already installed by his own HVAC contractor before Leraris stopped the work
and required permits.
McKinney testified that the floor “was cracked and had huge areas where it had raised
up,” and it had to be ground down to prevent people from tripping over it. He acknowledged
that the lease obligated him to provide the landlord with written notice if the landlord had
a maintenance obligation but that he never notified Park Plaza of the issue in writing. He
said the parties had numerous phone calls about the floor conditions.
Danny Gardener, the flooring contractor, testified that he was hired by McKinney to
apply an epoxy floor coating to Suite 128. He described significant problems with the floor
condition. Specifically, he said the concrete had “spalls,” which he described as delamination
of the surface cream layer, creating concave pits, and that there were areas where walls had
previously been removed, leaving raised sections. He testified that given the generally poor
condition, the floor required extensive grinding and leveling.
When asked whether he would call the floors “sound” before he started working, he
testified, “Sound, but not in good shape. Sound meaning that the concrete was a hard
substance, but in good shape, not at all.” He added that the floors also “wouldn’t have been
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sound enough to lay carpet or hardwood floor on” by industry standards. He explained that
his definition of “sound” is an industry standard scratch test on a scale of 1 to 9. Gardener
confirmed the floors tested as “hard concrete” by that measure. He confirmed he never
communicated with Carroll or anyone on Carroll’s behalf and did not know whether Carroll
was aware the floors needed work. He testified that the invoice was dated January 24, 2022.
He confirmed that the floor was ready for occupancy after he completed the job and that
McKinney paid him $12,200.
Mike Johnson testified that he was hired by McKinney in January 2022 to frame and
construct walls for the space. Johnson testified that he walked through the facility in midJanuary 2022 and discussed the layout with McKinney. He took measurements and drew up
plans. He picked up supplies from Cherokee Building Materials on January 27, 2022, and
he and a helper started work the following day. Johnson testified that the morning after they
had begun the work, they had to stop because Leraris arrived and told them the plans had
to be redrawn. Johnson’s original drawings were given to Leraris, who incorporated the
measurements into the new architectural plans. Johnson confirmed he erected
approximately two walls before being made aware of the need for a permit from the city.
Following testimony, the court invited the parties to file posttrial briefs. The court
entered its order on February 27, 2025, finding that the lease’s effective date was modified
to May 1, 2022. It found Park Plaza did not breach the lease because the effective date was
modified to May 1, 2022, and all the landlord’s work was completed by then. It found the
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tenants breached the lease by failing to make timely rent payments from May 1, 2022,
through October 9, 2023.
Accordingly, the court awarded judgment to Park Plaza for all damages that were
proximately caused by the tenants’ breach of contract (back rent of $45,736.45 plus
$5,600.00 in demolition costs). The court did not award Park Plaza its requested damages
related to the cost of building out the property for the new tenant, reasoning that those costs
would be recovered over time as it receives monthly rental payments from the new tenant.
McKinney timely appealed on March 21, 2025, and Park Plaza cross-appealed later that same
day.
II. Direct Appeal
In review of a bench trial, we determine whether the circuit court’s findings were
clearly erroneous or clearly against the preponderance of the evidence. Washington v. Kingridge
Enters., Inc., 2014 Ark. App. 705, at 2–3, 450 S.W.3d 685, 687. Disputed facts and
determinations of credibility of the witnesses are within the province of the fact-finder. Id. A
circuit court’s conclusions of law, however, are reviewed de novo and are given no deference
on appeal. Id.
McKinney first argues that the emails were legally insufficient to modify the lease
because they lacked signatures, failing to satisfy the lease’s no-oral-modification clause, and
even if the modification requirement could be relaxed, the parties’ intent was not established
by clear, unequivocal, and decisive evidence.
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Intent is a question of fact. Academy, Inc. v. Paradigm Building, LLC, 2017 Ark. App.
79, at 6–7, 513 S.W.3d 850, 855. Before the terms of a written contract can be altered or
reformed by oral agreement the evidence thereof must be clear, unequivocal, and decisive.
APCO Oil Corp. v. Stephens, 270 Ark. 715, 718, 606 S.W.2d 134, 137 (1980). “Indefinite
expressions” are insufficient to establish a binding and valid agreement to change the formal
requirements of a written contract. S. Acid & Sulphur Co. v. Childs, 207 Ark. 1109, 1112, 184
S.W.3d 586, 588 (1945). In both Stephens and Childs, the contracts contained no-oralmodification clauses.
Applying these principles, we hold that the court did not err in finding the parties’
performance of their respective obligations after the two email exchanges referenced above
amounted to an agreement extending the lease’s effective date to May 1, 2022. McKinney
testified that after he sent the second email thanking Carroll for working with him, he was
“glad [Carroll] continued to move forward because that is what we wanted to do was continue
to move forward.” McKinney did not terminate the lease upon learning of Park Plaza’s delays.
Instead, he participated in bathroom design decisions and continued to work on the
premises with his own contractors throughout the spring of 2022. Park Plaza spent
$107,781.91 in reliance on that conduct. A party who knows of a breach and nonetheless
continues to accept benefits and allow the other party’s performance waives the right to later
insist on that breach. S. Pipe Coating, Inc. v. Spear & Wood Mfg. Co., 235 Ark. 1021, 363
S.W.2d 912 (1963).
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To support his argument, McKinney directs us to his testimony that he told Park
Plaza the proposed course was “contrary to the lease” before the emails and that he was trying
to “stay positive.” However, he also testified that he “had not even thought of the lease,”
which undercuts his argument that he clearly and consistently objected to the modification.
The circuit court, as fact-finder, chose to credit Park Plaza’s witnesses and the documentary
evidence of continued performance over McKinney’s self-serving testimony. As stated above,
credibility determinations are within the province of the fact-finder. Pop-A-Duck, Inc. v.
Gardner, 2022 Ark. App. 88, at 18, 642 S.W.3d 220, 232.
Because we hold that the lease was modified by words and conduct, we need not
determine whether the email exchange satisfied the signed-writing requirement.
Next, McKinney argues that the court erred in finding that Park Plaza did not breach
the lease. He contends that Park Plaza breached the lease by failing to timely provide a
working HVAC system and structurally sound flooring and walls. His argument lacks merit.
Park Plaza provided a working HVAC system as shown by Carroll’s testimony that
Blaylock Heating and Air assessed the system and made sure it was functional. Park Plaza
also produced a paid invoice from Blaylock dated April 1, 2022. Again, McKinney directs us
to testimony favorable to his position, but credibility was for the circuit court to decide. PopA-Duck, supra.
Turning to the flooring issue, Gardener testified that the floors were sound even if
they were not ready for occupancy. Additionally, the lease specifically required written notice
before Park Plaza’s repair liability attached, and McKinney admitted he never gave written
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notice. Instead, the tenants began working on the floors almost immediately upon signing
the lease in January, before any breach could have occurred. Thus, McKinney’s argument
lacks merit regardless of whether “sound” means hardness or occupancy readiness. For these
reasons, McKinney’s argument about the walls also lacks merit. Park Plaza was not
realistically given an opportunity to remedy these conditions. Accordingly, the circuit court’s
conclusion that Park Plaza did not breach the lease is not clearly erroneous.
For his last point, McKinney argues that the court erred in finding that the tenants
breached the lease. Because the lease’s effective date was validly modified to May 1, 2022,
and Park Plaza did not breach the lease, the tenants’ admitted nonpayment of rent from that
date forward constituted a clear breach.
III. Cross-Appeal
Park Plaza first contends that the court erred in limiting its recovery to only back rent
and $5,600.00 in demolition costs. To relet the property, Park Plaza asserted that it had to
perform additional work costing $143,777.60. It argues that section 26 of the lease makes
the tenant liable for “the cost of reasonable repairs and expenses Landlord may incur to relet” the property upon default. The circuit court did not find these costs unreasonable;
rather, it denied recovery on the rationale that Park Plaza would “recover them over time”
through the new tenant’s rent payments.
That rationale has no basis in the lease and substitutes the circuit court’s own
economic analysis for the parties’ agreed contractual terms. A court may construe and
enforce a contract, but it may not rewrite it. Smith v. Orsbun, 2024 Ark. App. 330, 692 S.W.3d
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1. The circuit court’s stated reason for excluding these costs is therefore clearly erroneous as
a matter of contract interpretation. However, the record is unclear whether the circuit court
viewed the claimed expenses as reletting costs or as capital improvements whose value will
continue to benefit Park Plaza beyond this tenancy. We therefore reverse and remand for
the circuit court to determine (1) whether the expenses qualify as reletting costs under section
26 and (2) whether they are reasonable.
Last, Park Plaza challenges the circuit court’s dismissal of its unjust-enrichment claim
on the pleadings. The court held that quasi-contractual relief is unavailable where a valid
contract exists. That is the general rule in Arkansas, but it is not absolute. See Campbell v.
Asbury Auto., Inc., 2011 Ark. 157, 381 S.W.3d 21; see also Klein v. Arkoma Prod. Co., 73 F.3d
779, 786 (8th Cir. 1996) (explaining that “when an express contract does not fully address a
subject, a court of equity may impose a remedy to further the ends of justice”). However,
Park Plaza has not sufficiently established that any such exception applies here. We therefore
find no error in the circuit court’s dismissal of the unjust-enrichment claim.
IV. Conclusion
We affirm the judgment on direct appeal. On cross-appeal, we reverse the judgment
regarding the reletting costs and remand for further findings consistent with this opinion,
and we affirm the dismissal of the unjust-enrichment claim.
Affirmed on direct appeal; reversed and remanded in part and affirmed in part on
cross-appeal.
KLAPPENBACH, C.J., and HARRISON, J., agree.
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Kevin Hickey and Michael Graugnard, for appellant/cross-appellee.
Jones, Jackson, Moll, McGinnis & Stocks, PLC, by: J. Dalton Person, for appellee/crossappellant.
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