Argo v. Buck

C.R. ARGO v. James C. BUCK, Jr.

CA 97-366                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered November 19, 1997


1.   Appeal & error -- chancery case -- standard of review. -- On appellate
     review of a chancery case, the appellate court conducts a de
     novo review of the evidence, but findings of a chancellor will
     not be reversed unless they are clearly against the
     preponderance of the evidence; the question of a preponderance
     of the evidence turns largely on the credibility of the
     witnesses, and the appellate court defers to the superior
     position of the chancellor in determinations of credibility.

2.   Appeal & error -- abstract is record for appellate purposes. -- The
     abstract is the record for purposes of appeal.

3.   Appeal & error -- chancery case -- parties waived verbatim record -- no
     notes presented in abstract -- de novo review was impossible. -- Where,
     by mutual agreement, the parties waived a verbatim record of
     the proceedings, agreeing that there would be no record except
     for the chancellorþs notes, and no notes were presented to the
     appellate court in appellantþs abstract, the appellate court
     could not determine upon what evidence or testimony the
     chancellor made his determination; it was impossible to
     conduct a de novo review on what had been presented.

4.   Appeal & error -- appellant's burden on appeal. -- The appellant is
     charged with demonstrating error, and he cannot do so without
     the evidence and testimony.   

5.   Appeal & error -- Ark. R. App. P.--Civ. 6(d) -- failure to comply results
     in presumption supporting trial court's findings -- matter affirmed. --
     Under Rule 6(d) of the Arkansas Rules of Appellate Procedure--
     Civil, if no record of the evidence or proceedings is made,
     the appellant may prepare a statement of the evidence or
     proceedings from the best means available, the appellee may
     respond with amendments or objections, and the trial court
     then settles and approves the record; when no attempt is made
     to produce a record in compliance with Rule 6(d), it is
     presumed that the matters presented in the unrecorded hearing
     support the trial court's findings; for these reasons, the
     appellate court affirmed.


     Appeal from Monroe Chancery Court; Bentley Story, Judge;
affirmed.
     Dover & Dixon, P.A., by: Gary B. Rogers and Monte D. Estes,
for appellant.
     Robert M. Abney, P.A., for appellee.

     John B. Robbins, Chief Judge.
     Appellant C. R. Argo (þArgoþ) appeals the decision of the Monroe County Chancery
Court, which in effect ended a multi-year farmland lease of lands owned by appellee James C.
Buck, Jr. (þBuckþ).  In December 1970, Argo entered into a three-year lease, 1971 through 1973,
of 240 acres owned by Buck for a total lease price of $5,000.  Buck, as lessor, was responsible
for paying the taxes on the farmland under the terms of the initial lease.  On May 3, 1972, the
parties entered into an extension agreement, the terms of which are stated in their entirety:
     Extension of land lease, now in effect, between J. C. Buck, Jr. and C. R. Argo, for years
     beginning 1974 thru 1978 and/or longer.  Terms of agreement are: $3,000 due Buck on
     November 1, 1972.  Any and all land and/or levee taxes on this land are to be paid by
     C. R. Argo, and the lease extended after 1978 accordingly.
     
On July 19, 1973, the parties entered into another extension agreement.  The parties contracted
as follows:
     Extending the land lease now in effect between J. C. Buck Jr. and C. R. Argo beginning
     in crop year 1979 and extending thru year 1995.  Terms of this extension are $5,000 and
     other considerations.  Any and all land and/or levee taxes during time of lease will be
     paid by C. R. Argo and at the end of the time of this extension, Mr. Argo will continue
     the leasing of the land at the rate of $1,000 per year until he recaptures taxes he has paid
     on this land.
     
Buck filed a petition for declaratory judgment on October 30, 1995, asking the chancellor to
declare the second extension illegal and unenforceable to the extent that appellant would be able
to rent the farmland for $1,000 per year until all taxes that he paid on the land during the term
of the second extension, 1979 through 1995, were recaptured.  Argo stated that he had paid
nearly $12,000 in taxes, but the documentation supported only $8,080.
     Argo contended that the terms of the second extension entitled him to continue to rent and
farm the land after 1995 at $1,000 per year until reimbursed for the taxes he paid, and that by
the terms of the extension Buck was not permitted to reimburse Argo for these taxes in a lump
sum.  Furthermore, Argo argued that if during that time he had to pay taxes to prevent them from
becoming delinquent, he would be entitled to continue the lease to recoup future taxes paid as
well.
     After an unrecorded hearing on the merits, the chancellor made several pertinent findings
of fact: that every extension was initiated by Buck, the lessor; that Argo paid real estate and levee
taxes during the first term of the lease since Buck had failed to do so; that the first extension
contemplated Argo paying the taxes as part of the rental consideration; and that Argo paid the
taxes during the second extension of the lease.  Argo was entitled to reimbursement of
approximately $8,080 in taxes.  The chancellor further found that Argo was entitled to
reimbursement for the taxes paid in 1979 through 1995 but that Buck could reimburse Argo in
a lump sum.  The chancellor interpreted the terms to mean that, if Buck did so, the lease would
be terminated.  The chancellor ruled that not to allow Buck to repay the taxes due in a lump sum
would be unconscionable, and gave Buck the option of doing so by January 31, 1997.  Buck
chose to do so and paid the lump sum into the registry of the court.  This appeal resulted.
     On appellate review, we conduct a de novo review of the evidence, but findings of a
chancellor will not be reversed unless they are clearly against the preponderance of the evidence. 
Stallings v. Poteete, 17 Ark. App. 62, 702 S.W.2d 831 (1986).  The question of a preponderance
of the evidence turns largely on the credibility of the witnesses, and we defer to the superior
position of the chancellor in determinations of credibility.  Id.
     It is well established that the abstract is the record for purposes of appeal.  Porter v.
Porter, 329 Ark. 42, 945 S.W.2d 376 (1997).  Here, by mutual agreement, the parties waived a
verbatim record of the proceedings, agreeing that there would be no record except for the
chancellorþs notes.  We have no notes presented to us in appellantþs abstract.  We cannot
determine upon what evidence or testimony the chancellor determined that the lease term was
unconscionable except for the findings the chancellor made in his letter opinion.  It is impossible
to conduct a de novo review on what has been presented to us.  We cannot surmise from what
evidence or testimony the chancellor decided the parties contemplated more than one avenue to
terminate the lease.  Again, appellant is charged with demonstrating error, and he cannot do so
without the evidence and testimony.  McGarrah v. McGarrah, 325 Ark. 81, 924 S.W.2d 453
(1996).  While an agreement to waive the record and rely on the chancellor's notes may be an
efficient and economical procedure at the trial court level, it precludes a de novo appellate
review.  We are hard-pressed to find error by the chancellor when we do not know what evidence
was presented to the court.
     According to Rule 6(d) of the Arkansas Rules of Appellate Procedure, if no record of the
evidence or proceedings is made, the appellant may prepare a statement of the evidence or
proceedings from the best means available, and the appellee may respond with amendments or
objections.  The trial court then settles and approves the record.  When there is no attempt to
make a record in compliance with Rule 6(d), it is presumed that the matters presented in the
unrecorded hearing support the trial court's findings.  Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988).  For these reasons we affirm.
     Rogers and Neal, JJ., agree.