Cite as 2026 Ark. App. 502
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-25-567
ROCHELLE KIRK D/B/A DESERT Opinion Delivered October 28, 2026
CREST INVESTMENTS
APPEAL FROM THE BENTON
APPELLANT
COUNTY CIRCUIT COURT
[NO. 04CV-24-2435]
V.
HONORABLE CHRISTINE
BREWER HEATING & AIR, LLC HORWART, JUDGE
APPELLEE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
Rochelle Kirk (Kirk) appeals the Benton County Circuit Court’s May 27, 2025
judgment finding that Kirk breached the contract between her and Brewer Heating & Air,
LLC (“Brewer”). Specifically, Kirk argues that the circuit court erred in finding that (1) the
burden-shifting analysis set forth in Crumpacker v. Gary Reed Constr., Inc., 2010 Ark. App.
179, 374 S.W.3d 162, was inapplicable to the instant case; (2) Brewer fully performed the
contract, and Kirk materially breached the contract; and (3) the collateral-source rule did not
bar proof of a nonguaranteed rebate to offset Kirk’s damages. We affirm.
I. Background
On March 12, 2024, the parties entered into a written contract in which Brewer
agreed to perform repairs on Kirk’s air conditioner unit (“South AAON unit”). Specifically,
under the heading “Scope of Work,” the contract between Kirk and Brewer states that Brewer is to “[p]rovide labor and equipment with parts to replace two compressors, two fan
motors, and one south AAON unit.” Kirk agreed to provide sixty pounds of R22 freon and
pay Brewer $34,126.77.
Testimony at trial was that Brewer completed the contracted repairs on April 3. On
April 4, Brewer sent Kirk an invoice for the work performed according to the March 12
contract. On the invoice, the “Description of Services” reads: “Provided labor and
equipment with parts to replace two compressors, two fan motors, on the South AAON
unit.” Zachary Louis Brewer, Brewer’s owner, testified that he personally completed the
repairs in question. Zachary testified that he and another technician, Larry Siffing, began the
repairs on April 2 and ended on April 3; on completion, there were no issues; and the South
AAON unit was running correctly.
After nearly a month, Kirk informed Zachary that the South AAON unit was not
working again. When he came to inspect the AAON unit, he found that it had a “secondary
low-voltage short” that caused one of the compressors he had replaced to get welded shut
and freeze up. Zachary testified that he completed the additional repairs and replaced a
compressor under the compressor’s warranty. Once again, when he left, the unit was working
properly. Zachary did tell Kirk that she should install additional safeties on the two
compressors he replaced due to the age of the AAON unit. Kirk declined.
Kirk conceded that she knew the contract was for repair work and not to replace the
South AAON unit. Kirk testified that the unit “never worked” after the initial repair. She
further testified that the South AAON unit “was up and running for 10 seconds that they
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did check, but – but not any significant amount of time.” She then conceded that it “may
have been” working during the preventative-maintenance work on May 17 but that it
immediately broke down again afterwards.
Due to the alleged problems, Kirk had Multi-Craft Contractors, another HVAC
company, come and look at the South AAON unit. A technician inspected the unit on June
17 and determined that the safeties on the South AAON unit had been bypassed, which
caused the unit to run hot. Multi-Craft Contractors’ technician and manager both testified
they could not say who bypassed the safeties in question or when that occurred. Zachary and
a technician with Brewer both testified that they did not bypass the safeties and that the
safeties were not bypassed as of May 17, when the technician did his scheduled examination
of the unit.
II. Standard of Review
In order to prove a breach-of-contract claim, one must prove “the existence of an
agreement, breach of the agreement, and resulting damages.” Schwyhart v. J.B. Hunt, LLC,
2014 Ark. App. 324, at 11, 436 S.W.3d 173, 180. In civil bench trials, the standard of review
on appeal is not whether there is substantial evidence to support the findings of the court
but whether the court’s findings were clearly erroneous or clearly against the preponderance
of the evidence. Select Concrete Co. v. Cane Creek Concrete Servs., Inc., 2014 Ark. App. 161, at
4. The same standard applies to the circuit court’s factual findings. City of Rockport v. City of
Malvern, 2010 Ark. 449, 374 S.W.3d 660. A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the entire evidence is left with a firm
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conviction that a mistake has been made. Id. When the issue is one of law, our review is de
novo. Keith Capps Landscaping & Excavation, Inc. v. Van Horn Constr., Inc., 2014 Ark. App.
638, at 5, 448 S.W.3d 207, 210.
III. The Burden-Shifting Analysis
For her first point on appeal, Kirk alleges that the circuit court erred in finding that
the Crumpacker burden-shifting analysis did not apply to the instant case. To support this
point, she relies on the following arguments: (1) the contract between the parties included
implied warranties; (2) the implied warranties were in effect at all times; and (3) Crumpacker
governed the dispute in this case.
We do not need to delve into whether any implied warranties were included in the
contract between the parties. Nor do we need to consider whether the implied warranty of
solid workmanship was in play at the time of the alleged breach. Even assuming that Kirk is
correct that Crumpacker’s burden-shifting analysis governs the instant case, the circuit court
did not clearly err in determining that she failed to meet her burden.
Under Crumpacker, for the burden to shift to Brewer, Kirk had to first illustrate that
the “condition of the work breached the warranty.” 2010 Ark. App. 179, at 4, 374 S.W.3d
at 164. Essentially, Kirk was required to show that the work completed was the cause of the
later problems. The circuit court held that Kirk failed to meet this burden. The circuit court
noted that there were myriad possible explanations as to why the unit continued to break
down, but there was no evidence connecting the continued failure with the work completed
by Brewer.
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Kirk argues that the continued problems could only have resulted from Brewer’s
improper work. Kirk’s argument invites us to reweigh evidence and reassess credibility, which
we will not do. Childers v. Patterson, 2026 Ark. App. 12, at 5, 729 S.W.3d 178, 182. We
recognize the circuit court’s superior opportunity to determine the credibility of witnesses
and the weight to be given to their testimony. Mays v. Viva La Vegan Grocery, Inc., 2024 Ark.
App. 513, at 3, 700 S.W.3d 750, 759. The court, as the fact-finder at a bench trial, may
accept or reject any part of a witness’s testimony, and its conclusion on credibility is binding
on this court. See, e.g., Brown v. Shipley, 2022 Ark. App. 246, at 11, 646 S.W.3d 635, 641.
Given the evidence before the circuit court, we cannot say that it clearly erred in
determining that Kirk had not met her burden. Accordingly, we affirm on this ground.
IV. Prohibited Evidence
Kirk next argues that the circuit court erred when it prohibited Zachary from reading
aloud his deposition testimony. During the trial, Kirk’s counsel asked Zachary to read directly
from his deposition testimony. Zachary began reading his deposition response until the
circuit court interrupted and stated to Kirk’s counsel, “[I]f you want him to refresh his
memory and answer your question, he can do so, but I don’t need him to read his deposition
to me.”
Evidentiary rulings are a matter of discretion and are reviewed only for abuse of that
discretion. See Taylor v. Taylor, 345 Ark. 300, 47 S.W.3d 222 (2001); Nicholson v. Upland Indus.
Dev. Co., 2012 Ark. 326, at 6, 422 S.W.3d 108, 112. We will not reverse on an evidentiary
ruling absent a showing of prejudice. Greenway Equip., Inc. v. Johnson, 2020 Ark. App. 336, at
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15, 602 S.W.3d 142, 153. Any error by the circuit court in limiting the deposition testimony
was harmless. First, the deposition lines referenced were already before the circuit court as
an exhibit attached to Kirk’s response to Brewer’s motion for summary judgment. Second,
all the information located within the referenced lines were elicited through crossexamination without having to directly read the deposition. Accordingly, we hold that the
circuit court did not abuse its discretion in prohibiting Zachary from reading the selected
lines to the court.
V. Performance of Contract
Kirk’s next argument is that Brewer failed to perform under the contract. Specifically,
Kirk argues solely that the contract explicitly required Brewer to replace the entire South
AAON unit. As support, Kirk argues that under the heading “Scope of Work,” the contract
between Kirk and Brewer states that Brewer is to “[p]rovide labor and equipment with parts
to replace two compressors, two fan motors, and one south AAON unit.” Kirk asks us to
read this to mean that Brewer was required to replace the entire AAON unit under the
contract. However, Kirk conceded this argument below:
Q. And you know that this contract was not for the replacement or the
entire south AAON unit, right?
A. I knew the contract was to get me the south AAON unit up and
running.
Q. I’m going to try again. You know that this contract was not for the full
replacement of the entire south AAON unit, right?
A. Correct. It was to make the entire south AAON unit working
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Similarly, the “Description of Services” in the invoice sent to Kirk following the repairs done
to the South AAON unit reads: “Provided labor and equipment with parts to replace two
compressors, two fan motors, on the South AAON unit.” (Emphasis added.) Moreover, in
her motion for directed verdict, Kirk argued that “everyone agrees what the contract was
supposed to be for.” In its oral judgment, the circuit court stated that it was undisputed that
“[Brewer] and [Kirk] entered into a contract for the replacement of two compressors on the
south unit of the defendant’s property.” Kirk did not object to the pronouncement.
A mutual mistake must be shown by clear and decisive evidence that, at the time the
agreement was reduced to writing, both parties intended their written agreement to say one
thing and, by mistake, it expressed something different. Mauldin v. Snowden, 2011 Ark. App.
630, at 8, 386 S.W.3d 560, 565 (citing Lawrence v. Crafton, 2010 Ark. App. 231, 374 S.W.3d
224).
This is precisely what occurred here. Both parties explicitly testified that they
understood the contract to mean Brewer would replace parts located within the South
AAON unit and not replace the unit itself. Kirk cannot now allege unilateral mistake when
she explicitly testified to the contrary. Accordingly, we hold that the circuit court did not err
when it determined that the parties undisputedly entered into a contract to repair the South
AAON unit and not replace it.
Finally, Kirk argues that the circuit court erred when it failed to apply the collateralsource rule to the nonguaranteed rebate. Because we affirm the circuit court’s ruling, we do
not reach this argument.
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Affirmed.
BARRETT and MURPHY, JJ., agree.
Myers & Woods Law Firm PLLC, by: Andrew J. Myers, for appellant.
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., by: Randall Wakefield, for appellee.
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