City of Shannon Hills v. Sparks

CITY of SHANNON HILLS v. David L. SPARKS and
Joe Claypool, d/b/a Claypool & Sparks Realty,
Inc.

CA 95-23                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered March 6, 1996


1.   Specific performance -- requirements for -- when it will be
     granted. -- In order to be entitled to specific performance,
     a plaintiff must first show that it is able to perform its
     part of the bargain; specific performance of an agreement will
     not be granted unless the subject matter is so unique that
     damages in an action at law would be inadequate.

2.   Appeal & error -- argument case erroneously transferred not
     reached -- appellant failed to bring up a record sufficient to
     demonstrate reversible error. -- Appellant's argument that the
     case was erroneously transferred from chancery court was not
     reached because there was nothing in the abstract or record to
     demonstrate that appellant ever made any objection to the
     transfer; since there was no evidence that appellant objected
     to the transfer, it effectively consented to the circuit
     court's adjudication of the controversy and could not take
     issue with the transfer on appeal; it is the appellant's
     burden to bring up a record sufficient to demonstrate
     reversible error.   

3.   Motions -- motion for directed verdict granted -- factors on
     review. -- In addressing the issue of whether a directed
     verdict should have been granted, the evidence is viewed in
     the light most favorable to the party against whom the verdict
     is sought and given its highest probative value, taking into
     account all reasonable inferences deducible from it; where the
     evidence is such that fair-minded people might have different
     conclusions, then a jury question is presented, and the
     directed verdict should be reversed.

4.   Motions -- directed verdict properly granted -- appellant
     failed to provide any proof of damages. -- Where appellant
     provided no proof of damages, the appellate court did not
     reach the issue of whether a binding contract existed;
     although appellant was under no obligation to approve a
     development of the subdivision, doing so caused it no
     financial harm; the fact that appellees failed to pave the
     roads did not damage appellant, it simply had no property
     interest in the roads; the appellate court found no error in
     the circuit court's conclusion that a jury question was not
     presented due to appellant's failure to prove any damages; the
     circuit court's decision to grant a directed verdict in favor
     of the appellees was affirmed.



     Appeal from Saline Circuit Court; John Cole, Judge and Robert
W. Garrett, Chancellor; affirmed.
     Roachell & Streett, by:  Richard W. Roachell, for appellant.
     Ellis Law Firm, by:  George D. Ellis, for appellees.

     John B. Robbins, Judge.*ADVREPCA3*                DIVISION II









CITY OF SHANNON HILLS
                     APPELLANT

V.


DAVID L. SPARKS and JOE
CLAYPOOL, d/b/a CLAYPOOL &
SPARKS REALTY, INC.
                     APPELLEES



CA 95-23

                                                    MARCH 6, 1996


APPEAL FROM THE SALINE COUNTY
CIRCUIT COURT


HONORABLE JOHN COLE, CIRCUIT
JUDGE and ROBERT W. GARRETT,
CHANCERY JUDGE


AFFIRMED



                     John B. Robbins, Judge.


     Appellant City of Shannon Hills (Shannon Hills) brought an
action against appellees David L. Sparks and Joe Claypool in the
Saline County Chancery Court.  In its complaint, Shannon Hills
alleged that appellees had breached an oral contract to bring
certain roads up to city specifications.  Shannon Hills sought
specific performance or, in the alternative, damages.  In its
answer, the appellees prayed that the case be transferred to
circuit court because this was not a proper case for specific
performance and chancery court lacked jurisdiction.  The chancellor
agreed and transferred the case to the Saline County Circuit Court.
     A jury trial was held in Saline County Circuit Court.  After
Shannon Hills rested its case, the appellees moved for a directed
verdict, which was granted.  The trial court found that, even if a
contract existed between the parties, Shannon Hills was not
entitled to damages because none were suffered.
     For reversal, Shannon Hills contends that the chancery court
erred in transferring the action to circuit court.  In addition, it
argues that the circuit court erred in dismissing the case because
it had a right to recover damages.  We find no error and affirm.
     Harold McIntire, Mayor of Shannon Hills, testified on behalf
of the city.  He stated that, in 1983, it came to his attention
that the appellees were seeking approval to develop a subdivision
to be known as Joan's Subdivision.  He stated that appellees wanted
Shannon Hills to accept the private gravel roads in the subdivision
for dedication to the city as city roads.  However, this request
was denied.  Later, on September 26, 1983, the city council
conducted a meeting after which it approved the appellee's
subdivision plans.  However, as a condition to the approval, the
appellees were required to bring the roads up to city standards in 
7 1/2 years.  According to the mayor, the appellees were present at
this meeting and did not object to the condition.  It was also
agreed that, at the discretion of Shannon Hills, the city was
authorized to grade the roads, provide police patrol on the roads,
and respond to any emergencies.
     More than seven years later appellees had not paved the roads
in question, yet they continued to develop the subdivision. 
Therefore, two months before the 7 1/2-year period ended, the mayor
notified appellees that the deadline was approaching and that the
roads were not up to city specifications.  The appellees failed to
upgrade the roads, and this action was commenced.
     Tommy Bond, a consulting engineer, also testified on behalf of
Shannon Hills.  He stated that, based on his estimation, it would
cost $58,286.55 to bring the roads in Joan's Subdivision up to city
specifications.  Shannon Hills sought this amount as damages, and
the mayor testified that this money would be used to pave the roads
and bring them up to the city's standards.
     Shannon Hills' first argument for reversal is that the
chancery court erroneously transferred this case to circuit court. 
It asserts that, since its complaint sought specific performance,
the chancery court had jurisdiction to hear the case.  Shannon
Hills acknowledges that, in order to be entitled to specific
performance, a plaintiff must first show that it is able to perform
its part of the bargain.  See McIllwain v. Bank of Harrisburg, 18
Ark. App. 213, 713 S.W.2d 469 (1986).  It asserts that its part of
the bargain has been fully performed because it approved the
subdivision, and that appellees should be ordered to fulfill its
obligation to bring the roads up to city specifications.  Shannon
Hills further acknowledges that specific performance of an
agreement will not be granted unless the subject matter is so
unique that damages in an action at law would be inadequate.  See
McCallister v. Patton, 214 Ark. 293, 215 S.W.2d 701 (1948). 
However, it argues that special circumstances exist in the instant
case which render specific performance the appropriate remedy.  As
a special circumstance, Shannon Hills asserts that damages may be
difficult to recover.  It also states that if damages are awarded,
the city would have the added expense and inconvenience of
soliciting bids and retaining a company to do the necessary paving. 
Finally, Shannon Hills asserts that it would be a burden if it were
required to supervise their selected contractor, inspect the work,
and make payment therefor.
     We need not address Shannon Hills' argument that this case
was erroneously transferred from chancery court because there
is nothing in the abstract or record to demonstrate that Shannon
Hills ever made any objection to the transfer.  Since there is
no evidence that Shannon Hills objected to the transfer, it
effectively consented to the circuit court's adjudication of the
controversy, and cannot now take issue with the transfer.  See
Towell v. Shepherd, 286 Ark. 143, 689 S.W.2d 564 (1985).  Although
counsel for Shannon Hills stated during oral arguments before this
court that objections to the transfer were made to the chancellor,
the record does not so reflect, and it is well established that it
is the appellant's burden to bring up a record sufficient to
demonstrate reversible error.  SD Leasing, Inc. v. RNF Corp., 278
Ark. 530, 647 S.W.2d 447 (1983).  The record is silent as to any
objection on this issue.  Thus, it is not preserved for our review.
     Shannon Hills' remaining argument is that the circuit court
erred in directing a verdict in the appellee's favor, thereby
denying Shannon Hills' claim for damages.  It argues that it was
under no obligation to approve appellees' request to develop Joan's
Subdivision, and that it is now entitled to have the roads upgraded
pursuant to the agreement between the parties.  Shannon Hills
further asserts that it would not have approved the subdivision
absent this agreement.
     We need not decide whether a binding contract existed in this
case because, as the circuit court found, even if appellees
breached a contract with Shannon Hills, there was no proof that
Shannon Hills suffered any damages.  Although Shannon Hills was
under no obligation to approve a development of this subdivision,
doing so caused it no financial harm.  The mayor and former council
members conceded that the roads in question were not owned by the
city, but were privately owned, and may never be dedicated to the
city even if they were brought up to city standards.  Therefore,
the fact that appellees failed to pave the roads did not damage
Shannon Hills.  It simply had no property interest in the roads.
     Shannon Hills seems to suggest that approval of the
subdivision caused them the expense of providing fire and police
protection, as well as performing minor repairs to the roads as
they become necessary.  However, it provided no proof of the cost
of such undertakings, and its request for damages apparently did
not include such cost.  Moreover, it is undisputed that the city
was not required to provide these services and rendered them at its
sole discretion.
     In Lytle v. Wal-Mart Stores, Inc., 309 Ark. 142, 827 S.W.2d 652 (1992), our supreme court quoted from Howard v. Hicks, 304 Ark.
112, 800 S.W.2d 706 (1990), as follows:
     [I]n addressing the issue of whether a directed verdict
     should have been granted, we must view the evidence in
     the light most favorable to the party against whom the
     verdict is sought and give it its highest probative
     value, taking into account all reasonable inferences
     deducible from it.  Where the evidence is such that fair-
     minded people might have different conclusions, then a
     jury question is presented, and the directed verdict
     should be reversed.
Lytle at 143.
     In the case at bar, we find no error in the circuit court's
conclusion that a jury question was not presented due to Shannon
Hills' failure to prove any damages.  Thus, we affirm its decision
to grant a directed verdict in favor of the appellees.
     Affirmed.
     Jennings, C.J., and Griffen, J., agree.