J & J Marotti, Inc. v. Tom Papachristou

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISIONS I & IV

J & J MAROTTI, INC.

APPELLANT/CROSS-APPELLEE

V.

TOM PAPACHRISTOU

APPELLEE/CROSS APPELLANT

CA 00-074

February 7, 2001

SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

In our December 20, 2000, opinion, we refused to consider appellee's argument on his cross-appeal, that the chancellor erroneously based the award of restitution on the amount of his actual expenses instead of the amount by which his improvements increased the property's value, because he had failed to make the argument at trial. Appellee filed a petition for rehearing, arguing that he had raised this issue to the chancellor and that we should have addressed it on appeal.

It is apparent that, throughout the proceeding below, appellee consistently sought damages for unjust enrichment as measured by his actual expenses. In paragraph eleven of his second amended complaint, wherein he asserted that appellant had been unjustly enriched,appellee stated that he sought to recover the cost of the improvements to the property. At trial, appellee focused on, and testified at great length about, the substantial amount of money that he had spend on improving appellant's property. He also introduced into evidence Plaintiff's Exhibit 4, wherein he listed his claimed expenses totaling over $124,000, most of which were not awarded by the chancellor. In our view, the chancellor's decision to award appellee a portion of his claimed expenses comes within the doctrine to invited error. One may not complain on appeal of an action of the chancellor if he has induced, consented to, or acquiesced in that action. Neel v. Citizens First State Bank, 28 Ark. App. 116, 771 S.W.2d 303 (1989); Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984).

Additionally, even if appellee had not pursued his expenses at trial, we could not hold that he proved the monetary amount by which his improvements benefitted appellant's property. It is true that Joe Marotti testified that the property is worth whatever the improvements are worth. However, there is no evidence in the record of the land's value with the improvements. Dan Mulhollen, an engineer, testified that it would cost about $125,000 to construct an airstrip such as the one that appellee had constructed on appellant's property. His testimony, however, does not prove that this land's value is necessarily equal to the amount it would cost to construct an airstrip there. Appellee has, therefore, failed to demonstrate any prejudice by the chancellor's use of his costs as the measure of damages. The burden is on the party appealing to demonstrate that the trial court has committedprejudicial error. Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992). Error that does not result in prejudice is not reversible. Id.

Therefore, appellee's petition for rehearing is denied.

Hart, Jennings, Robbins, Bird, and Neal, JJ., agree.