Faye Avington v. Thomas Hammons

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

FAYE AVINGTON

APPELLANT

V.

THOMAS HAMMONS

APPELLEE

CA 01-183

December 19, 2001

APPEAL FROM THE CHANCERY COURT OF CLARK COUNTY

[E-2000-15]

HON. CHARLES PLUNKETT,

JUDGE ON ASSIGNMENT

AFFIRMED

Appellant, Faye Avington, appeals the chancery court order denying her claim for equitable rescission and granting appellee's counter claim for specific performance and quieting of title. We affirm the chancellor's decision.

In 1971, appellant Faye Avington purchased a tract of real estate that included the parcel at issue in this case. In 1990, appellee Thomas Hammons and appellant entered into a written contract for the sale of three acres of her land. The land was sold for $1000 per acre. The parties memorialized their agreement in writing and each party signed the written document.1 On September 16, 1990, appellee wrote a check to appellant in the amount of $1700. The check contained a notation "downpayment [sic] for three acres." The check was cashed by appellant on September 19, 1990.

The parties are not in agreement as to the payment of the remaining $1300. Appellee testified that appellant called him one evening and requested that he tender the $1300 that he owed in cash to the sheriff, Al Harris, because one of her sons was in jail in Malvern. Appellee testified that he used a receipt book from his previous business, Flotation Therapy, and asked Harris to sign the receipt. Harris testified that he did receive the $1300 in cash from appellee and forwarded the money to David Avington. Harris further testified that he asked David Avington to sign the receipt. Appellant denies receipt of the $1300 in cash, and alleges that appellee did not complete his obligation and refused to deliver him the deed. To further support appellant's contention that she did not receive the remaining balance on the transaction, David Avington denied that the signature on the receipt belonged to him; he argued that the receipt was forged because the "A" in Avington was a small "A" and not a capital "A."2 This allegation of forgery was made for the first time at trial.

Appellant also argues that the exact location of the land she sold is in dispute. On or about September 23, 1991, Gary Whitfield (a registered professional surveyor), performed a survey for appellee of the three acres. Appellee commissioned Whitfield to conduct the survey on appellant's recommendation. However, appellant argues that she asked to be present at the time of the survey and that she was in fact not present during the survey nor was she notified that the survey was taking place.

The plot located in Clark County, Arkansas, was described by Whitfield as:

PART OF THE FRL. SW 1/4 NW 1/4 IN SECTION 1 TOWNSHIP 7S RANGE 19W AND DESCRIBED AS BEGINNING AT THE NW CORNER OF SAID FRACTIONAL SW 1/4 NW 1/4 AND RUN THENCE SOUTH ALONG SAID W/L OF THE SW 1/4 NW 1/4 580.8 FEET; THENCE NORTH 37 DEGREES 46' 06" EAST 734.73 FEET; THENCE WEST 450 FEET TO THE POINT OF BEGINNING; THIS PARCEL OF LAND HAVING AN AREA OF 3.00 ACRES MORE OR LESS.

The trial court found that the survey adequately identified the land sold to appellee, based on the parties agreement that the survey would commence at a witness tree in the "NW corner of the fractional SW 1/4 NW 1/4" and that such survey would set out the metes and bounds of the tract. Accordingly, the trial court denied appellant's request for rescission of the contract, but awarded her the right of ingress/egress through the property by way of easement. The trial court also found that the appellee was entitled to specific performance based on the fact that he had 1) paid the entire purchase price, 2) possessed the land, and 3) made valuable improvements upon the land since September 16, 1990, when he paid the initial down-payment on the property.

Appellant first argues that her claim for equitable rescission was improperly denied. Equitable rescission is an action of an equitable nature in which a party seeks to be relieved of her obligations under a contract on the grounds of mutual mistake, fraud, or impossibility. Am. Ins. Co. v. Mountain Home Sch. Dist. No. 9, 300 Ark. 547, 780 S.W.2d 557 (1989). However, appellant does not make any claim of mutual mistake, fraud, or impossibility. Instead, she argues that absent a writing, the contract is unenforceable in violation of the writing requirements of the Statute of Frauds as codified at Ark. Code Ann. § 4-59-101(a)(4)(Repl. 1998) (requiring a writing setting out the terms of any sale of land for the contract to be generally enforceable). Additionally, appellant argues that without a writing there is no evidence of a "meeting of the minds," and therefore, the basic elements of a contract have not been met.

In chancery cases we review the record de novo, but will not reverse the chancellor unless his findings are clearly erroneous or against the preponderance of the evidence, giving due regard to his opportunity to judge the credibility of the witnesses. Ark. R. Civ. P. 52 (a); Hackworth v. First Nat'l Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). The loss or destruction of a memorandum does not deprive it of effect under the Statute of Frauds. Restatement (Second) of Contracts § 167; S. Cotton Oil Co. v. Coleman, 116 Ark. 268, 170 S.W.2d 922 (1914). In cases where there is clear and convincing evidence of the terms and contents of the lost document, the contract is enforceable. Mobley v. Hammons, 313 Ark. 361, 854 S.W.2d 348 (1993).

Appellant relies heavily on Mobley for the proposition that the person to supply the terms and content of the missing document must be a person with "no dog in the hunt." She contends that without testimony from a neutral-third party, the existence of the contract cannot be proven by clear and convincing evidence. However, in Mobley, the court did not require that a person testifying to the terms of the lost contract be a neutral-third party. The court instead held that when the question is the existence and terms of a lost document, the appellate court will defer to the chancellor's superior position to evaluate the credibility of witnesses.

Here, there is uncontradicted evidence of a written contract for three acres (to be calculated based on certain boundaries from which a surveyor could calculate the real estate sold) to be sold at $1000 per acre with a $1700 down-payment. Appellee has been in possession of the property since his initial down-payment, has constructed several cabins on the property, and has built fences and a gravel road on the property. Once the chancellor determined (after assessing the credibility of the various witnesses) that the remaining balance on the sale of land had been tendered and thatthe area to be conveyed was consistent with the land identified in the survey conducted by Whitfield, the order of specific performance and quieting of title was proper.

Next, appellant argues that the survey completed on the land did not comply with the statutory requirements set forth at Ark. Code Ann. § 16-46-103 (Repl. 1999), which provides that "no survey made by any person except the county surveyor or his deputy shall be considered legal evidence in any court of law or equity within this state unless the surveys are made under the authority of the United States or by mutual consent of the parties." However, appellant first objects to Whitfield's authority to perform the survey on appeal. Issues raised for the first time on appeal are not preserved for appellate review. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Finally, it should be noted that appellant, not appellee, is the party that requested ejectment. In appellant's second point on appeal she asserts that the chancellor's order quieting title and ejecting her from her land should be reversed. The appellee never requested nor received ejectment of appellant. The chancellor did, however, deny appellant's complaint for ejectment of appellee.

Affirmed.

Pittman and Jennings, JJ., agree.

1 Appellant lost her copy of the document in a fire; appellee lost his copy of the document during the course of a move.

2 The "A" on the receipt is clearly a capital cursive "A" and is approximately twice as large as the other letters contained in the signature.