Cite as 2015 Ark. 444 

SUPREME COURT OF ARKANSAS

No. CV-14-869

ASHLEY HARTNESS

APPELLANT

V.

RICK NUCKLES

d/b/a RESTORATION PLUS

APPELLEE

Opinion Delivered December 3, 2015

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[NO. CV-2012-111]

HONORABLE STEPHEN TABOR,

JUDGE

AFFIRMED.

RHONDA K. WOOD, Associate Justice

 This appeal arises from a dispute involving the restoration of a 1968 Pontiac Firebird. 

The car owner sued the body shop that did the repairs for, among other things, breach of 

express warranty, breach of implied warranty, money had and received, and conversion. 

The circuit court ruled that the breach of warranty claims failed for lack of notice and ruled 

that the other claims failed for lack of proof. We affirm the circuit court’s judgment.

Facts and Procedural History 

 Ashley Hartness wanted to restore his 1968 Pontiac Firebird. He found a body shop 

to do the work: Restoration Plus, which was owned by Rick Nuckles. Hartness and 

Nuckles entered into an oral arrangement. Nuckles agreed to give the car a new paint job, 

perform body work, and install a new electrical system. Hartness would purchase and 

provide the new parts as needed, while Nuckles and his employees would provide the 

services. Hartness claimed that Nuckles promised to do “Barrett-Jackson” or show-car 
Cite as 2015 Ark. 444

2 

quality work. At trial, Nuckles adamantly denied having made any such representation. 

Even so, it is undisputed that the car entered the Restoration Plus body shop in May 2007. 

 Over the course of the next two and a half years, Nuckles submitted over nineteen 

invoices to Hartness, which he paid in cash. Hartness also took the car for a number of test 

drives and gave Nuckles feedback on the progress and quality of the work. Hartness picked 

up his car in December 2009, believing the restoration was complete. He returned the car 

on one more occasion to Nuckles for further repairs. After these final repairs, Hartness 

picked up and kept the vehicle. Despite deep dissatisfaction with the restoration, he did not 

notify Nuckles of any further concerns with the quality of the work until filing a lawsuit 

against him in September 2012. 

 Hartness alleged a number of causes of action in his complaint: breach of express 

warranty, breach of implied warranty, money had and received, conversion, fraud, deceit, 

and false representation. A bench trial was held. Hartness introduced pictures of his car that 

he claimed were taken shortly after the car left the body shop. A number of defects were 

apparent from the pictures, including chipped paint, misaligned doors, and overall shoddy 

workmanship. Nuckles testified, however, that there was no way the car looked as 

represented in the pictures when it left the body shop. 

 The circuit court did not resolve the factual dispute regarding the existence of an 

express or implied warranty. Instead, the court found that Hartness failed to comply with 

the notice requirement of the Uniform Commercial Code (UCC), which requires a party 

suing on a warranty to notify the breaching party before filing suit. Ark. Code Ann. § 4-2-

607(3)(a) (Repl. 2001). The court also rejected the remaining claims. Hartness appeals, 
Cite as 2015 Ark. 444

3 

arguing that the UCC-notice requirement applies only to warranties for goods; because his 

warranty was for services, the notice requirement shouldn’t apply. Hartness also argues that 

the court should have awarded him damages on his money-had-and-received and 

conversion claims. We accepted certification from our court of appeals because the issue 

regarding notice is one of first impression. Ark. Sup. Ct. R. 1-2(b)(1) (2015). 

Express and Implied Warranties

 We first address whether giving notice is a prerequisite to filing a breach-of-warranty 

lawsuit in non-UCC cases. As an initial matter, this court has never explicitly ruled whether 

express and implied warranties apply in a contract for services. It’s true that our commercial 

code includes express and implied warranties for the sale of goods.1 But outside the newhome construction context, we have never extended implied warranties to contracts that 

are exclusively for services.2

 We have recognized an express warranty in a services case, but 

in that particular case, such a warranty was specifically authorized by statute.3 

 The circuit court never ruled whether express and implied warranties applied to a 

contract to restore an automobile. The court overlooked this preliminary issue and instead 

addressed whether the notice requirement was satisfied. Since the court did not directly rule 

 

1

 Ark. Code Ann. § 4-2-313 (express warranties); Ark. Code Ann. § 4-2-314 

(implied warranty of merchantability); Ark. Code Ann. § 4-2-315 (implied warranty of 

fitness for a particular purpose). 

2 See, e.g., Wawak v. Stewart, 247 Ark. 1093, 1100, 449 S.W.2d 922, 926 (1970) 

(holding that “an implied warranty may be recognized in the sale of a new house by a seller 

who was also the builder”).

3 See Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675 (1996). 
Cite as 2015 Ark. 444

4 

on the existence of the warranties, nor was it addressed on appeal, the issue is not before us. 

See Gwin v. Daniels, 357 Ark. 623, 184 S.W.3d 28 (2004) Furthermore, this is a court of 

appellate jurisdiction, and we do not decide issues not directly or indirectly presented in or 

decided by the trial court. Id. In any event, it would be premature for this court to decide 

whether express and implied warranties attach as a matter of law in a contract for services. 

The parties never briefed the issue, which has far-reaching implications. Commentators and 

other jurisdictions are split on whether warranties should apply when the contract is for 

services rather than goods.4

 Thus, our discussion below is limited to whether there is a notice 

requirement if such warranties exist.5 

Hartness’s argument regarding notice has two components. First, he argues that UCC 

notice was not required when the contract was for services. Second, he argues that even if 

notice was required, his notice was sufficient. The first issue is one of law, which we review 

de novo. Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844. The second issue is one of fact, 

which we review for clear error. Ark. R. Civ. P. 52(a). Again, taking no position on 

 

4 18 Richard A. Lord, Willison on Contracts § 52:45, 258–59 (4th ed. 2001) (“There 

is a division of opinion whether the express warranty concepts in the Code are also 

applicable or may be extended to service agreements.”). Compare Pepsi Cola Bottling Co. of 

Anchorage v. Superior Burner Service Co., 427 P.2d 822 (Alaska 1967) (holding that a claim for 

breach of an implied warranty did not lie in a contract for personal services) with Ellen 

Taylor, Applicability of Strict Liability Warranty Theories to Service Transactions, 47 S.C. L. Rev. 

231 (Winter 1996) (arguing that implied warranties should attach in a contract for services). 

5 Contrary to the dissent’s point of view, this opinion is not advisory. Because the 

circuit court’s only ruling on the breach of warranty claims was that the claims failed for 

lack of notice, our jurisdiction is limited to this issue. Further, the answer to this question is 

neither moot nor academic because our decision will have a practical effect on the parties’ 

legal rights: whether notice is required will control Hartness’s ability to sue Nuckles for 

breach of warranty.
Cite as 2015 Ark. 444

5 

whether breach of warranty claims should even exist for a contract that is exclusively for 

services, we hold that if such warranties do exist, the UCC notice requirements apply. 

Under Arkansas’s Uniform Commercial Code, a buyer of goods “must within a 

reasonable time after he discovers or should have discovered any breach notify the seller of 

the breach or be barred from any remedy.” Ark. Code Ann. § 4-2-607(3)(a). “[T]he giving 

of reasonable notice is a condition precedent to recovery under the provisions of the 

commercial code and . . . the giving of notice must be alleged in the complaint in order to 

state a cause of action.” Williams v. Mozark Fire Extinguisher Co., 318 Ark. 792, 797, 888 

S.W.2d 303, 305 (1994). One purpose of the notice requirement is to give the seller an 

opportunity to reduce his damages by curing the defect. Id. Whether notice under this 

subsection is sufficient and given in a reasonable amount of time is generally a question of 

fact. 18 Richard A. Lord, Williston on Contracts § 52:44, 251 (4th ed. 2001); see also AMI—

Civil 2507 (2015) (including as an element of a breach of warranty cause of action whether 

notice was given in a reasonable time). 

 This court has often looked to the UCC for guidance on contract principles by 

analogy. See Graham Const. Co. v. Earl, 362 Ark. 220, 208 S.W.3d 106 (2005). There, we 

held that an express warranty in a contract for services (namely, construction of a home) 

takes precedence over implied warranties on the same subject. In reaching this conclusion, 

we looked to the UCC, stating that “[a]lthough the statute is inapplicable to the present 

case because [the statute] involves the sale of goods . . . the principle should nevertheless 

apply.” Id. at 229, 208 S.W.3d at 111. We did the same thing in Haase v. Starnes, noting 

that the UCC “provides guidance on contract principles by analogy.” 323 Ark. 263, 272, 
Cite as 2015 Ark. 444

6 

915 S.W.2d 675, 680 (1996). Our court of appeals also has relied on the UCC to impose a 

notice requirement in breach-of-warranty cases involving the construction of a new home. 

See Cinnamon Valley Resort v. EMAC Enters., Inc., 89 Ark. App. 236, 202 S.W.3d 1 (2005). 

Therefore, we hold that if an express warranty or an implied warranty is created in a contract 

for services, the UCC notice requirement from Ark. Code Ann. § 4-2-607 applies. That is, 

before filing a lawsuit, a person alleging breach of warranty must give the breaching party 

reasonable notice or be barred from any remedy. This holding vindicates the purpose of the 

notice requirement, which is to allow the opposing party an opportunity to reduce his 

damages by curing the defect. It is also in accord with our state’s well-established practice 

of reasoning to the UCC by analogy in contracts for services. 

 Turning to the facts of this case, we hold that the circuit court’s ruling that Hartness 

failed to give notice of the breach was not clearly erroneous. The testimony at trial indicated 

that the first notice Nuckles received about his alleged breach of a warranty was in the 

complaint, which was filed thirty-three months after Hartness picked up the vehicle from 

the body shop and after he had driven the car for almost 1000 miles. This was an 

unreasonable amount of time. See Mozark Fire, 318 Ark. at 797, 888 S.W.2d at 306 (holding 

that a second amended complaint, in itself, was insufficient statutory notice for a breach-ofimplied warranty claim). Reasonable notice by Hartness would have informed Nuckles 

exactly how the vehicle failed to live up to Hartness’s expectations. Notice also would have 

given Nuckles an opportunity to cure any defects and would have allowed him to mitigate 

any damages. It also would have given both parties an opportunity to document the 
Cite as 2015 Ark. 444

7 

condition of the car once the restoration was complete. We therefore affirm the circuit 

court’s ruling that Hartness’s claims for breach of warranty failed for lack of notice.6 

Money Had and Received (Unjust Enrichment)

Hartness’s next argument is that the court should have granted him relief on his claim 

for money had and received. An action for money had and received provided the foundation 

for the doctrine of unjust enrichment, see Frigillana v. Frigillana, 266 Ark. 296, 307, 584 

S.W.2d 30, 35 (1979), and the two actions are essentially the same. See First Nat’l Bank of 

Dewitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005); Campbell v. Asbury Auto., Inc., 2011 

Ark. 157, 21, 381 S.W.3d 21, 36 (defining an action based on unjust enrichment identically 

to one for money had and received). Under the principle of unjust enrichment, a “person 

should not be permitted unjustly to enrich himself at the expense of another, but should be 

required to make restitution of or for property or benefits received, retained, or 

appropriated.” Servewell Plumbing, LLC v. Summit Contractors, Inc., 362 Ark. 598, 612, 210 

S.W.3d 101, 112 (2005). 

Here, the circuit court denied Hartness’s claim for unjust enrichment because he 

presented no evidence regarding his “damages,” ruling that any award would require 

speculation. Hartness argues on appeal that this ruling was made in error, highlighting 

multiple pieces of evidence from trial that support his claim for “damages.” For example, 

Hartness argues that he submitted evidence regarding the amount it would cost to repair the 

 

6

 Hartness also argues that the issue of notice was tried by consent. However, the 

record reflects that Nuckles raised lack of notice in his motion to dismiss, his motion for a 

directed verdict, and in his posttrial brief. 
Cite as 2015 Ark. 444

8 

vehicle to its bargained-for condition. In short, Hartness argues that he was entitled to 

recover based on unjust enrichment because he proved expectation damages. 

 However, a party is not entitled to expectation damages for unjust enrichment; 

instead, he is entitled to restitution. “[S]ometimes courts use the term damages when they 

mean restitution . . . [b]ut . . . the damages remedy and the restitution remedies are always 

conceptually distinct.” 1 Dan B. Dobbs, Law of Remedies: Damages-Equity-Restitution § 

4.2(3), 581 (2d ed. 1993). “To measure damages, the courts look at the plaintiff’s loss or 

injury; to measure restitution, the courts look at the defendant’s gain or benefit.” Id. A 

claimant seeking restitution for unjust enrichment can generally recover the value of the 

benefit conferred upon the party unjustly enriched. See Sanders v. Bradley Cnty. Human Servs. 

Pub. Facilities Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). The claimant’s burden is to 

“produce evidence permitting at least a reasonable approximation of the amount of the 

wrongful gain.” Restatement (Third) of Restitution and Unjust Enrichment § 51 (2011). “If the 

claimant’s evidence will not yield even a reasonable approximation, the claim of unjust 

enrichment is merely speculative, and disgorgement will not be allowed . . . [and] the 

claimant’s burden of proof, so described, is ordinarily met as soon as the claimant presents a 

coherent theory of recovery in unjust enrichment.” Id. at § 51 cmt. i; accord El Paso Prod. 

Co. v. Blanchard, 371 Ark. 634, 647, 269 S.W.3d 362, 373–74 (2007) (reversing award of 

restitution for unjust enrichment because award was speculative). 

At trial, Hartness failed to present evidence of a reasonable approximation of 

Nuckles’s wrongful gain. Instead, he focused on the how much it would cost to repair his 

vehicle to its bargained-for condition. This is not a theory for recovery in unjust enrichment, 
Cite as 2015 Ark. 444

9 

and there was no competent evidence about what gains Nuckles received from the 

transaction that were unjustified.7 Because there was no evidence regarding the amount of 

Nuckles’s wrongful gain, we affirm the circuit court’s ruling that Hartness could not recover 

for unjust enrichment. 

Conversion

 The final issue is conversion. Hartness argues that the circuit court should have 

granted him relief on this claim because Nuckles kept the old parts from the car and never 

returned them. The court denied this claim because, it found, the old parts had been 

damaged and were generally worthless. The court ruled that Nuckles simply discarded the 

old parts near the shop because he did not see any further use for them. 

 Conversion is a common-law tort action for the wrongful possession or disposition 

of another’s property. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 

729 (1998). To establish liability for the tort of conversion, a plaintiff must prove that the 

defendant wrongfully committed a distinct act of dominion over the property of another, 

which is a denial of or is inconsistent with the owner’s rights. Id. Where the defendant 

exercises control over the goods in exclusion or defiance of the owner’s rights, it is a 

conversion, whether it is for defendant’s own use or another’s use. Id.

 

7

 Hartness did present invoices from Restoration Plus that, according to him, 

constituted evidence of overcharging. But the circuit court obviously did not believe that 

any of these charges were wrongful or amounted to an unjustified gain for Nuckles. In any 

event, Hartness argues that his damages for unjust enrichment should be the amount it 

would take to repair his car; there is no argument that Nuckles should be stripped of his 

wrongful gain, which is the proper measure of unjust enrichment. 
Cite as 2015 Ark. 444

10

 This was a bench trial, so the standard of review on appeal is whether the circuit 

court’s findings were clearly erroneous or clearly against the preponderance of the evidence. 

Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253 (2007); Ark. R. Civ. P. 52(a). We view 

the evidence in the light most favorable to the appellee, resolving all inferences in favor of 

the appellee. McQuillan, supra. Disputed facts and determinations of the credibility of 

witnesses are within the province of the fact-finder. Cochran, supra. 

On appeal, Hartness argues that the “greater weight of the evidence demonstrates 

Nuckles either lost or destroyed parts belonging to Hartness, which resulted in specific 

damages.” This argument contradicts the testimony of one of Nuckles’s employees, who 

testified that the old parts were labelled and damaged parts were discarded outside the body 

shop. In essence, Hartness argues that we should reweigh the evidence in his favor. But this 

is something we cannot do. We weigh the evidence in favor of the verdict and leave 

questions regarding credibility with the fact-finder. Applying these standards, we hold the 

circuit court’s findings were not clearly erroneous. We affirm on this point. 

 Affirmed. 

 BAKER and GOODSON, JJ., concur. 

 HART, J., dissents. 

KAREN R. BAKER, Justice, concurring. I, like the majority, would affirm the 

circuit court. However, I write separately because I would affirm the circuit court based 

solely on Hartness’s failure to prove damages. The burden of proving damages rests on the 

party claiming them. Minerva Enters., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992) 

(citing Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976)). Although recovery will 
Cite as 2015 Ark. 444

11

not be denied merely because the amount of damages is hard to determine, damages must 

not be left to speculation and conjecture. Vowell v. Fairfield Bay Cmty. Club, Inc., 346 Ark. 

270, 58 S.W.3d 324 (2001). 

The circuit court held as follows: 

Plaintiff argues in his brief that certain charges were “clearly excessive” and 

much of the work was Aclearly defective[.]@ However, at trial certain things were 

noticeable by their absence - such as expert testimony regarding the usual time and 

expense of such a restoration as well as valuation of the vehicle both before and after 

Defendants= involvement. In general, there was lack of competent testimony as to 

damages. 

. . . .

The Court has no doubt that at least some of the issues complained of could 

have, and should have, been performed better. For example, the presence of sand in 

the vehicle seems inexcusable along with some cosmetic issues depicted in the 

photographs taken shortly after Plaintiff took possession of the vehicle. However, 

any damages awarded for those items would require speculation by the Court. 

I cannot say that the circuit court clearly erred in finding that the proof of damages 

in this case was insufficient to allow the court to enter a judgment without resorting to 

speculation. Of particular concern is the lack of any specific proof about the value of the 

car when it was retrieved by Hartness as opposed to the value the car would have had if it 

had been restored to the condition agreed to by the parties. 

Because Hartness failed to offer adequate proof of damages, the circuit court was left 

to speculate as to the amount of damages. For this reason, I would affirm the circuit court 

and I would not address whether the notice requirement of Arkansas Code Annotated 

section 4-2-607(3)(a) is applicable to the present case. 

GOODSON, J., joins. 
Cite as 2015 Ark. 444

12

JOSEPHINE LINKER HART, Justice, dissenting. I dissent because the majority’s 

opinion embodies mistakes of fact and law. The opinion reveals a fundamental 

misunderstanding of an individual’s constitutional right to contract. Further, it is an advisory 

opinion—something that this court routinely claims that it does not issue. The majority 

also misunderstands the circuit court’s finding with regard to Mr. Hartness’s proof of value. 

Mr. Nuckles’s defense to Mr. Hartness’s breach-of-warranty claims was that Mr. 

Hartness failed to give him sufficient notice of the defect. While there was a disagreement 

at trial as to whether Nuckles promised to restore Mr. Hartness’s 1968 Pontiac Firebird 

convertible to “Barrettt-Jackson” quality, it was not disputed that Mr. Hartness was 

promised at least a quality of restoration that was better than what Mr. Hartness expected to 

receive when he took possession of his car. Accordingly, there is arguably a disagreement 

about the terms of the express warranty in the oral contract. Nonetheless, there is no dispute 

that an express warranty was made. Thus, the existence of a warranty was not an issue at 

trial. The majority acknowledges that it was never raised, briefed, or ruled on by the circuit 

court, yet concludes that the reason for the lack of a ruling is that the issue was 

“overlooked.” In my view, for the majority to make such a conclusion is an obvious mistake 

of fact. 

 This error was compounded by this court deciding, on its own motion, to make the 

existence of a warranty a threshold issue, finding that this issue was not ruled on by the 

circuit court, and using the failure to obtain a ruling as its rationale for barring Mr. Hartness’s 

argument on appeal. The majority’s justification for its holding is that the Arkansas Supreme 

Court has never decided whether “breach of warranty claims should even exist for a contract 
Cite as 2015 Ark. 444

13

that is exclusively for services.”1 The majority clearly misunderstands the role of the Arkansas 

Supreme Court. We are not lawgivers. Our job is to interpret the law. The right to contract 

is inalienable and guaranteed by our state constitution, and this court should not create 

wholesale conditions that will affect all service contracts. Leep v. St. Louis, I.M. & S. Ry. 

Co., 58 Ark. 407, 25 S.W. 75 (1894). Accordingly, the court has exceeded its power; it has 

only the power to opine on the constitutionality of a limitation imposed on the right to 

contract. Id. 

Inexplicably, having barred Mr. Hartness’s argument, the majority nonetheless goes 

on to consider whether the notice requirement stated in Arkansas Code Annotated section 

4-2-607(3)(a), a statute dealing with warranties in the sale of goods, should apply “if such 

warranties do exist.” There is no clearer example of an advisory opinion. Black’s Law 

Dictionary, 35–36 (6th ed. 1990) defines advisory opinions as follows: 

Such may be rendered by a court at the request of the government or an interested 

party indicating how the court would rule on a matter should adversary litigation 

develop. An advisory opinion is thus an interpretation of the law without binding 

effect. While the International Court of Justice and some state courts will render 

advisory opinions, the federal courts will not; their jurisdiction being restricted to 

cases or controversies. 

 

1Perhaps the majority believes that causes of action that sound in contract are the 

same as causes of action that sound in tort. It is the practice of this court to selectively 

recognize common law torts. See, e.g., M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 

681 (1980) (recognizing the tort of outrage or intentional infliction of emotional distress); 

see also Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000) (refusing to 

recognize the tort of spoliation of evidence). 
Cite as 2015 Ark. 444

14

Heretofore, this court did not render advisory opinions. See, e.g., Arkansas State Hwy. & 

Transp. Dep’t v. O.J.’s Serv. Two, Inc., 2015 Ark. 388; Arms v. State, 2015 Ark. 364, ___ S.W.3d 

____; Chandler v. Martin, 2014 Ark. 219, 433 S.W.3d 884.

 Lastly, in my view, the majority also makes a mistake of fact when it purports to 

affirm the circuit court’s finding that Mr. Hartness “presented no evidence regarding his 

‘damages.’” In its findings of fact, the circuit court acknowledged that there was at least 

some substandard work: 

The Court has no doubt that at least some of the issues complained of could have, 

and should have, been performed better. For example, the presence of sand in the 

vehicle seems inexcusable along with some cosmetic issues depicted in the 

photographs taken shortly after Plaintiff took possession of the vehicle. However, 

any damages awarded for those items would require speculation by the Court. 

Mr. Harness testified that he was not only over-charged for work performed, but 

also charged for work that was never performed. I am also mindful that Mr. Harness also 

testified that he believed he was entitled to full refund. Regarding Mr. Harness’s desire for 

a complete refund, there is significance in the circuit court’s finding that there was a lack of 

evidence of the value of the vehicle before and after Nuckles’s involvement, as well as the 

lack of expert testimony to establish the usual and customary time and expense for such 

restoration. However, while Mr. Harness may not have presented proof that he was entitled 

to a complete refund, Mr. Nuckles conceded that, based on the pictures and live view of 

the car that was conducted during the trial, a portion of the work was not up to standard 

and required a definite amount of shop time to remedy. Suffice it to say that there is a 

difference between no evidence and incomplete evidence. Certainly Mr. Hartness 
Cite as 2015 Ark. 444

15

presented evidence whereby a trier of fact could find some damages. I would therefore 

reverse and remand this case for the circuit court to assign a value to sub-standard work. 

Byars, Hickey & Hall, PLLC, by: Joe D. Byars, Jr., for appellant. 

Smith, Cohen & Horan, PLC, by: Stephen C. Smith and Jacob K. Wooley, for appellee.