Howard Rex Johnson v. Moses Cotton

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ca02-941

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

HOWARD REX JOHNSON

APPELLANT

V.

MOSES COTTON

APPELLEE

CA 02-941

APRIL 9, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

TWELFTH DIVISION

[NO. EQT2001-005020]

HONORABLE ALICE SPRINKLE

GRAY, JUDGE

AFFIRMED

In 1994, appellant Howard Rex Johnson, as lessor, entered into a lease-to-purchase agreement with appellee Moses Cotton. The contract concerned residential property at 1724 State Street in Little Rock, Arkansas. In 2001, appellee Cotton brought an action to declare the contract fulfilled and to require Johnson to specifically perform the contract by conveying a deed to him. Johnson counterclaimed for past-due payments and for reimbursement of taxes and insurance payments that Cotton had contracted to pay but did not. Johnson also alleged that if the contract had been breached, then Johnson was entitled to cancel the contract. Cotton prevailed before the Pulaski County Circuit Court. Johnson argues on appeal (1) that the trial court erred by granting specific performance of the lease-to-purchase contract; or in the alternative (2) that if specific performance was proper, the trial court erred by giving Cotton an $800 credit for payments unsupported by any proof andby denying

Johnson reimbursement for $1044.52 in taxes $1508 for insurance paid on the property that were Cotton's responsibility. We affirm.

The testimony presented to the judge began with Cotton, who testified that he leased with an option to purchase the above-stated property. Cotton said that he remembered the contract to read that he was obligated to pay $285 per month for seventy-two months with no responsibility for taxes or insurance. Cotton said that he lost the original contract and did not believe the one that Johnson brought to court to be accurate. Cotton said that he inquired about a payoff amount on several occasions, and the amount he was told went up every time he asked, ranging from $2500 to $7000. Cotton believed that he paid more than he owed and was entitled to a conveyance of the property.

Johnson testified that the written contract, which he presented as an exhibit, indicated that the lease agreement had a purchase option that required $284.83 to be paid in eighty-four monthly installments, and the contract also required Cotton to maintain insurance and real property taxes. Johnson then presented three pages of notebook paper that had on them Johnson's hand-written notations of payments made and owed. Johnson hand-wrote on another sheet of notebook paper the amounts he contended he had paid for yearly taxes and insurance on the property. However, Johnson did not present any business receipts from the county or an insurance agency to support that these amounts were paid by him. The recordreflects that portions of Johnson's and Cotton's testimony were lost due to the court reporter having used a defective audio tape.1

The trial judge rendered her findings at the conclusion of the hearing and found that the parties entered into a written contract; that the written contract specified that Cotton was

obligated to pay eighty-four monthly payments of $284.83, plus taxes and insurance; that neither party presented compelling proof of payments made or owed other than verbal or handwritten claims; and that Cotton owed a total of $2562 on the contract, giving Cotton an $800 credit for some of the overpayments he claimed in his testimony and giving no credit to Johnson's claim that he paid and was owed insurance and taxes. The final judgment of the amount owed by Cotton to Johnson, $1763, was ordered to be paid in three monthly installments, and upon full payment, Johnson was to convey a deed to Cotton. Johnson filed a timely notice of appeal and brief; Cotton did not file a responsive brief.

We review this type of case de novo on appeal; however, we will not reverse the circuit judge's findings of fact unless they are clearly erroneous. McNamara v. Bohn, 69 Ark. App. 337, 13 S.W.3d 185 (2000). A finding is clearly erroneous when, although thereis evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). We are not left with such a definite and firm conviction, and we affirm.

Appellant Johnson first argues that the trial judge erred in granting specific performance of the contract. Specific performance is an equitable remedy that compels performance of a contract on the precise terms agreed upon by the parties or such a substantial performance as will do justice between the parties under the circumstances. Dossey v. Hanover, Inc., 48 Ark. App. 108, 891 S.W.2d 67 (1995). Because it is an equitable remedy, courts of equity are allowed some latitude in granting or withholding that relief, depending upon the equities of a particular case. Id. It is a means of compelling a contracting party to do precisely what he should have done without being coerced by a court. McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978). Specific performance is a particularly appropriate remedy in the context of real estate interests under agreement. See Stacy v. Lin, 34 Ark. App. 97, 806 S.W.2d 15 (1991). Where specific performance is ordered in equity, the rules for damages at law do not apply. Miller v. Estate of Dawson, 14 Ark. App. 167, 686 S.W.2d 443 (1985). Whether a trial court should have ordered specific performance of the sale of the land is a question of fact. Stacy, supra.

Appellant Johnson prevailed in his assertion that the written contract he presented was the contract between the parties. The trial judge ordered the parties to perform under that contract. Inasmuch as the evidence showed that Cotton had substantially performed, weare not persuaded that the trial judge clearly erred in concluding that Johnson's contract should be specifically performed.

Johnson's second argument on appeal is that the trial judge erred in granting a credit of $800 to Cotton and not granting any credit to Johnson's assertion that he was owed taxes and insurance. Although, strictly speaking, legal damages are not awarded when specific performance is decreed, a decree should, as nearly as possible, require performance in accordance with the terms of the contract. See McCoy Farms, Inc., supra. As found by the trial judge, neither of the parties presented persuasive evidence of what was paid or owed other than their own self-serving claims to payments made or owed.2 The judge was left to little else but to resolve the conflicts in testimony, which is the province of the trier of fact. Taylor v. Eagle Ridge Developers, LLC, 71 Ark. App. 309, 29 S.W.3d 767 (2000); Belcher v. Stone, 67 Ark. App. 256, 998 S.W.2d 759 (1999). Furthermore, and as noted above, we do not have the benefit of a complete record of the evidence before the trial court and must assume that the matters that were unrecorded support the trial court's findings. See Argo v. Buck, supra. Consequently, we cannot say that the decision made in an effort to do equity was clearly erroneous.

Pittman and Vaught, JJ., agree.

1 We are unaware of any attempt to reconstruct the missing testimony or to settle the record. According to Rule 6(d) and (e) 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, it is presumed that the matters that were unrecorded support the trial court's findings. See Argo v. Buck, 59 Ark. App. 182, 954 S.W.2d 949 (1997); Rush v. Wallace, 23 Ark. App. 61, 742 S.W.2d 952 (1988).

2 It is clear that the parties disagreed on the purchase price because they disagreed on the number of months of installments, resulting in a price difference of approximately $3418. This figure is based upon Cotton's belief that the installments were due for seventy-two months, whereas the written contract called for eighty-four months. Nevertheless, the actual payment history was sharply in dispute.

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