Harvill v. Bevans

Fred HARVILL, et al. v. Geneva BEVANS

CA 94-604                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 14, 1996


1.   Civil procedure -- bank's ratification pursuant to Ark. R.
     Civ. P. 17 (a) cured any alleged defect in the parties --
     trial court's ruling not in error. -- Rule 17(a) of the
     Arkansas Rules of Civil Procedure provides that every action
     shall be prosecuted in the name of the real party in interest
     and where the real party in interest ratifies the action of
     another, such ratification, joinder or substitution shall have
     the same effect as if the action had been commenced in the
     name of the real party in interest; here, in ruling on the
     motion to dismiss, the trial court had before it a document
     executed on behalf of the bank which reflected that the bank
     released the assignment to appellee and stated that the bank
     ratified the actions of the appellee in declaring the purchase
     contract to be forfeited and further ratified the act of the
     appellee in beginning the unlawful detainer suit; therefore,
     the trial court did not err in finding that the bank's
     ratification cured any alleged defect in the parties.

2.   Appeal & error -- argument not raised or ruled upon by the
     trial court -- argument not reached by appellate court. -- 
     Appellants' argument that the bank was appellee's agent and 
     that the appellee should be bound by the bank's acceptance of
     late payments made in November 1993 was not reached by the
     court where there was nothing in the abstract to support
     appellants' contention that the bank "accepted" the payments
     and secondly, the abstract did not disclose that this argument
     was raised or ruled upon by the trial court; the record on
     appeal is confined to that which is abstracted; failure to
     abstract information pertinent to an issue precludes the court
     from considering the issue on appeal.

3.   Damages -- treble damages properly disallowed -- appellee made
     no argument that appellants' failure to vacate was wrongful. -
     - Appellee's contention that the trial court erred in
     disallowing treble damages as set forth in Ark. Code Ann. 
     18-60-309 (1987) was without merit where appellee made no
     argument characterizing appellants' failure to vacate as
     wrongful and appellants maintained that their actions were
     justified because of their belief that the bank was the real
     party in interest and their reliance on the bank not having
     declared a default; before such liability can be imposed,
     there must be a finding of willful or wrongful holding over,
     under these circumstances, the trial court's decision was not 
     clearly erroneous.


     Appeal from Pulaski Circuit Court, Second Division; Chris
Piazza, Judge; affirmed.
     Josh E. McHughes, for appellants.
     Davidson Law Firm, by:  Skip Davidson and Stephen L. Gershnes,
for appellee.

     Judith Rogers, Judge.*ADVREP*CA1*                  DIVISION II




                                       CA 94-604
                                        
                                                   February 14, 1996   
                                          

FRED HARVILL, ET AL.                 AN APPEAL FROM THE CIRCUIT
                 APPELLANTS          COURT OF PULASKI COUNTY,         
                                     SECOND DIV., NO. CIV. 93-7715
VS.
                                     HONORABLE CHRIS PIAZZA,         
GENEVA BEVANS                        CIRCUIT JUDGE
                 APPELLEE
                                     AFFIRMED





                         Judith Rogers, Judge.


     Appellants Fred Harvill, Paul Wayne Poe, Burt Carroll
Westerman, and Party Tyme Club, Inc., appeal from a judgment in
favor of appellee, Geneva Bevans, in an unlawful detainer action. 
Appellants raise three issues for reversal of the trial court's
decision, while appellee raises one issue on cross-appeal.  Finding
no merit in any of the arguments presented, we affirm on both
direct and cross-appeal.
     The following facts are not in dispute.  At various times in
1991, appellee made loans totalling $90,000 to appellant Fred
Harvill and Josh McHughes for the construction of a building on the
property which is the subject of this action.  Since construction,
the building was occupied by appellant Party Tyme Club, Inc. 
Appellant Harvill and McHughes gave a quitclaim deed for the
property to appellee and her now deceased husband to secure payment
of the loans.  However, appellant Harvill was unable to obtain
financing for the payment of the loans.  To assist Harvill and to
recover the monies she had loaned, appellee arranged to borrow
$95,000 from National Bank of Arkansas.  From the loan proceeds,
appellee recovered the $90,000 she had loaned.  Appellee also
advanced them $2,500 at Harvill's request and paid the expenses
associated with obtaining the loan.  Thereafter, appellee and her
late husband agreed to sell the property to appellants Harvill, Poe
and Westerman for the sum of $95,000.  To this end, the parties
entered into a purchase contract on December 10, 1991, and the
appellants executed a real estate installment note in favor of
appellee and her husband in the amount of $95,000, to be paid at
the rate of $1,500 a month.  With appellants' written consent,
appellee then made an assignment of the contract and note to
National Bank.  Under this arrangement, payments due from appel-
lants were made directly to the bank, which in turn applied the
payments to the loan it had made to appellee and her husband.
     The purchase agreement for the sale of the land contained a
provision which authorized the appellee to rescind the contract in
the event of default in payment for a period of thirty days or upon
appellants' failure to pay taxes, assessments or insurance on the
property when due.  As of October 15, 1993, appellants were in
default with respect to payments due for August and September of
that year.  Appellee then gave written notice to appellants of
rescission of the contract, and she made demand for the immediate
possession of the property.  Appellants refused to vacate the
premises, and in November 1993 appellants tendered three payments
totalling $4,500 to the bank.  The bank returned the payments at
appellee's request.  Appellee then filed this suit in unlawful
detainer.
     The trial of this matter was held on February 15, 1994.  By
order of February 17, the trial court found that appellee was
entitled to immediate possession of the property and entered
judgment in favor of appellee in the amount of $10,500 in unpaid
rent, as reduced by sums held in the registry of the court.  In so
ordering, the trial court denied appellants' motion to dismiss in
which it was alleged that the bank was the real party in interest
because of the assignment made by appellee of the purchase contract
and installment note.  The court also denied appellee's request for
treble damages.  This appeal followed.
     The primary focus of appellants' arguments on appeal is their
contention that the trial court erred in denying their motion to
dismiss.  Appellants insist on appeal, as they did below, that the
bank is the real party in interest due to appellee's assignment of
the purchase contract and note, and that the appellee thus lacked
standing to bring the action.  While appellants devote much of
their brief referring to decisions supportive of the view that the
assignee alone is entitled to sue, their reliance on those
decisions is misplaced in this particular case because the bank
ratified the acts of appellee in declaring a default and in filing
the lawsuit.   
     Rule 17(a) of the Arkansas Rules of Civil Procedure provides
that every action shall be prosecuted in the name of the real party
in interest.  Subsection (a) of the rule, however, further provides
that:
No action shall be dismissed on the ground
that it is not prosecuted in the name of the
real party in interest until a reasonable time
has been allowed after objection for ratifica-
tion or commencement of the action by, or
joinder of, the real party in interest; and
such ratification, joinder or substitution
shall have the same effect as if the action
had been commenced in the name of the real
part in interest.
(Emphasis supplied.)  In ruling on the motion to dismiss, the trial
court had before it a document executed on behalf of the bank
entitled "Ratification and Release of Assignment."  The document
reflects that the bank released the assignment to appellee and
states that the bank "ratifies the actions of the [appellee] in
October 1993 in declaring the purchase contract to be forfeited and
further ratifies the act of the [appellee] in beginning this
unlawful detainer suit."  This case falls directly within the
purview of Rule 17.  See McMaster v. McIlroy Bank, 9 Ark. App. 124,
654 S.W.2d 591 (1983).  Therefore, we cannot conclude that the
trial court erred in finding that the bank's ratification cured any
alleged defect in the parties.
     Alternatively, appellants ask us to consider the bank as being
appellee's agent and to reverse on a finding that appellee is bound
by the bank's acceptance of late payments made in November 1993. 
In this regard, appellants contend that no breach of contract
occurred since the bank accepted the payments.  There are two
reasons this argument must fail.  First, there is nothing in the
abstract to support appellants' contention that the bank "accepted"
the payments.  To the contrary, the record reflects that the
payments were returned to appellants by the bank.  Secondly, our
review of the abstract does not disclose that this argument was
raised or ruled upon by the trial court.  It is fundamental that
the record on appeal is confined to that which is abstracted. 
Mahan v. Hall, 320 Ark. 473, 897 S.W.2d 571 (1995).  Failure to
abstract information pertinent to an issue precludes this court
from considering the issue on appeal.  See Edwards v. State, 321
Ark. 610, 906 S.W.2d 310 (1995).  
     On cross-appeal, appellee contends that the trial court erred
in disallowing treble damages as set forth in Ark. Code Ann.  18-
60-309 (1987).  Appellee points out that appellants did not vacate
the property when demand was made and that appellants did not
surrender the property until February 20, 1994, when ordered to do
so by the court.  Appellee argues that "the trial court lacked the
discretion to refuse to award the statutorily required treble
damages."  Appellee misunderstands the requirements of the law. 
Before such liability can be imposed, there must be a finding of
willful or wrongful holding over.  Anthes v. Thompson, 28 Ark. App.
304, 773 S.W.2d 846 (1989); see also Heral v. Smith, 33 Ark. App.
143, 803 S.W.2d 938 (1991).  Appellee makes no argument character-
izing appellants' failure to vacate as wrongful.  Appellants
maintain that their actions were justified because of their belief
that the bank was the real party in interest and their reliance on
the bank not having declared a default.  Under the circumstances,
we cannot say that the trial court's decision is clearly erroneous.
     Affirmed.
     Cooper and Robbins, JJ., agree.