Wendell H. Nicholson and Dianna L. Nicholson v. Marsha Rae Bowers

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

WENDELL H. NICHOLSON and DIANNA L. NICHOLSON

APPELLANTS

V.

MARSHA RAE BOWERS

APPELLEE

CA02-566

April 9, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

OT-1998-5211

HON. COLLINS KILGORE, JUDGE

AFFIRMED

This is an appeal from the trial court's decision ordering appellants to pay appellee $6900 in damages for depriving her of access to her property. Appellants raise five points of appeal: (1) appellee failed to comply with Ark. R. Civ. P. 3 in bringing her complaint; (2) the issue of deprivation of access to the property prior to the court's order of June 14, 1999, is res judicata; (3) the trial court's ruling was based on an erroneous assumption; (4) the measure of damages was based on speculation; (5) the appellee failed to enforce her own rights. We affirm.

Appellee, Marsha Rae Bowers, entered into a purchase agreement with appellants, Wendell and Dianna Nicholson, on March 23, 1993. The agreement provided that Bowers agreed to purchase a piece of property located at 503 Gardenia Street. Bowers made a $2,000 down-payment and executed a note of $33,000 to be paid in monthly installments of $350, with the note to balloon on April 5, 1995. Bowers complied with the terms of the agreement until April 1995, when she was unable to obtain financing to pay the balance due on the note. Appellants claimed that they informed Bowers that she reverted to the status of a renter pursuant to the purchase agreement. Bowers continued to make monthly payments until February or May 1998 and continued to improve the property. On May 5, 1998, the property was destroyed by a fire, forcing Bowers to move. The purchase agreement required appellants to maintain insurance on the property.

After appellants received the insurance proceeds, Bowers demanded that appellants convey the property to her by warranty deed and pay her the insurance proceeds that exceeded the balance due on the note. Appellants refused and Bowers filed a complaint in the Pulaski County Chancery Court seeking a declaratory judgment, an accounting, and an imposition of a constructive trust and equitable lien. On June 14, 1999, the court ordered appellants to pay Bowers $4800 and transfer a deed to her. Appellants appealed to this court, and we affirmed the trial court's decision in Nicholson v. Bowers, CA00-69 (Feb. 14, 2001).

On April 18, 2001, Bowers filed a motion to compel, which is not part of the record on appeal. Appellants transferred the deed and paid the money owed on May 25, 2001. On May 29, 2001, the trial court held a hearing on Bowers's motion to compel, wherein Bowers put on testimony regarding her allegations of deprivation of access to the property. Ruling that Bowers had not pled deprivation and that the court's previous order had been complied with, the court allowed her to nonsuit her claim.

On July 6, 2001, Bowers filed a complaint against appellants alleging deprivation of access to the property in question and subsequent deterioration of the property. On December 4, 2001, after a hearing, the trial court ruled that appellants had deprived Bowers of access to the property and awarded her $6900 as damages. From that decision, comes this appeal.

Our standard of review is well settled. Equity cases are reviewed de novo on appeal; however, we will not reverse a trial court's findings of fact unless they are clearly erroneous. Taylor v. Eagle Ridge Developers, 71 Ark. App. 309, 29 S.W.3d 767 (2000).

Appellants first contend that appellee failed to comply with Ark. R. Civ. P. 3 in bringing the complaint. They allege that when appellee filed the July 6, 2001 complaint, the court clerk assigned the old case number instead of using a new case number. Rule 3 merely states that a civil action is commenced by filing a complaint with the clerk of court who shall note the date and time of filing on the complaint. If appellants are arguing that appellee's claim was barred by res judicata, the argument will be discussed below. However, we hold that the clerk's assigning of the old case number is not, by itself, grounds for reversal.

Appellants' second and third points of appeal, although phrased differently, amount to one issue, whether the incidents that the trial court relied on in finding that appellants deprived appellee of use of the property occurred prior to appellee's first complaint and the trial court's June 14, 1999 order. Specifically, appellants' second point alleges that the court's decision was barred by res judicata because the incidents occurred prior to the June 14, 1999 decision. And for the third point, appellants argue that the trial court's decision was based on the erroneous assumption that the incidents occurred after June 14, 1999.

At the December 4, 2001, hearing, Marsha Bowers testified that from June 19, 1999, she attempted to go on the property. She stated that her husband boarded up the property once, in June or July 1998 after the fire. She stated that she attempted to go on the property and was prevented. A note from Mr. Nicholson was left on her husband's windshield which stated, "Lee, if I catch you over here again, the police will arrest you for trespassing." A note was introduced into evidence which read, "Lee, this is private property. Keep out. Next time your truck will be towed. Wendell [Nicholson]." She testified that the note was left after June 19, 1999, sometime after the school year started. She claimed that after that date she was not allowed to go over there. A week after the note incident, Mr. Bowers went to the property and a North Little Rock police officer stopped him andtold him to stay off the property.

Elgin Bowers, appellee's husband, testified that he attempted to get on the property between June 1999 and May 2001, but was unsuccessful. He stated that the note was left on his truck between June 1999 and May 2000. He added that between June 1999 and May 2001, he was stopped by the North Little Rock police, who threatened to arrest him for being on the property and told him not to get caught there anymore. He also testified that "during that period of time, he had contact with the City of NLR, who directed him to board up the house and to cut the grass." He stated that he cut the grass a couple of times, but paid the neighbor to cut it because he did not feel free to do anything to the property under a threat of arrest.

Mr. Nicholson also testified at the hearing. He testified that he wrote the note left on Mr. Bowers's windshield. He explained that he left the note there because Code Enforcement notified him to keep the property such that nobody could get on it, i.e., to keep the gates locked. The city also notified him to cut the grass. Mr. Nicholson testified that he did not put the locks on the gate to keep appellee out. He stated that they were going inside "cutting the grass anyway. They weren't supposed to. They were supposed to stay off it." He testified that the Bowers were going to the property regularly, working on getting the house cleaned up and cutting the grass, and he asked them to please "leave it alone until we got it settled." He claims this was about six weeks after the fire. On the other hand, he testified that they were never denied access. He stated that he still owned the house, was responsible for what went on there, and was trying to comply with Code Enforcement.

Although appellants argue that the events complained of occurred before the June 14, 1999 decree, the testimony is conflicting because the Bowers specifically testified that the acts of deprivation occurred after that date. In light of the above facts, we cannot say that the trial court's decision was clearly erroneous. The evidence was in dispute, and we have recognized that we givedue deference to the trial court's superior position in equity cases to determine the credibility of the witnesses and the weight to be accorded to their testimony. Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999).

Appellants also argue that the measure of damages was based on speculation. Appellee testified that her house payment used to be $350 per month, that she had to pay rent of $300 per month for alternative housing, and that her inability to access the property delayed the repair process. In awarding damages, the court relied on the lower figure of $300 and awarded appellee twenty-three months at $300 per month.

Appellants contend that this amount is speculative because the house was uninhabitable due to the fire. Citing State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002), appellants argue that the proper measure of permanent damages to property is the difference in market value before and after the injury, or diminution in value. We disagree and hold that the trial court used the correct measure of damages.

In Miller v. Estate of Dawson, 14 Ark. App. 167, 172, 686 S.W.2d 443, 446 (1985) (quoting 71 Am. Jur. 2d 278, Specific Performance 217), we noted that:

The general rule, where specific performance is granted of a contract to sell ··²SDU_16²····²SDU_16²··realty, is that the vendor must account to the purchaser for any deprivation of the use of the property from the date when possession should have been transferred, and for any detriment to the property caused by his failure to preserve it properly; as against which the vendor is entitled to credit for any expenses and carrying charges properly incurred by him for the improvement or preservation of the property, and for any loss of the use of the purchase money or other consideration from that same date.

Here, the trial court considered the amount of appellee's house payment and the amount of money she had to spend on alternative housing during the period in which she was denied access to her property, in deciding to award appellee $300 per month for twenty-three months. Because of the trial court's broad powers in equity cases to fashion any remedy that is reasonable and justified bythe proof, see Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996), we cannot say that the court's award of damages was clearly erroneous.

For their final point of appeal, appellants argue that appellee's deprivation claim stems from acts that occurred prior to the original lawsuit and that they did nothing to enforce their rights. As discussed above, there was a dispute as to when the acts occurred, and the trial court found that the acts occurred after the June 14, 1999 decision. In addition, although appellants argued at the May 29, 2001 hearing that appellee failed to enforce her rights, it was not raised in their answer to appellee's July 2001 complaint or in the December 4, 2001 hearing. 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).

Affirmed.

Pittman and Robbins, JJ., agree.