Jim Clark and Dwayne Pasley v. Mary Vergie O'Brien

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ca04-998

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JIM CLARK AND DWAYNE PASLEY,

APPELLANTS

V.

MARY VERGIE O'BRIEN,

APPELLEE

CA04-998

APRIL 13, 2005

APPEAL FROM WHITE COUNTY CIRCUIT COURT,

CV-01-336

HONORABLE BILL MILLS, JUDGE

AFFIRMED

Sam Bird, Judge

Appellants Jim Clark and Dwayne Pasley appeal from an order of the White County Circuit Court entered on May 26, 2004, which awarded unpaid rent, clean-up costs, attorney's fees, and court costs to appellee Mary Vergie O'Brien in an unlawful detainer action. On appeal, appellants contend (1) that the trial court erred as a matter of law when it awarded damages to appellee in addition to rent, and (2) that the trial court erred in refusing to admit photographs of appellee's property. We affirm.

Appellants entered into a written lease agreement with appellee in 1996. The 1996 lease expired in September 1999, at which time the parties apparently entered into an oral lease agreement. Following a dispute over the lease that began in late 2000 and continued into 2001, appellee filed an action for unlawful detainer. In addition to unpaid rent, the complaint in unlawful detainer sought "damages which may accrue or may be revealed by an inspection of the premises," attorney's fees, and costs.

At a hearing held on November 26, 2001, appellee's son, George O'Brien, testified that in December 1999, the parties "in effect entered into a verbal agreement" for another

lease, which was supposed to be for a one-year term. George said that, when appellants failed to pay the rent in December 2000, he attempted to contact them to request payment. Specifically, he said that he sent two letters to appellants requesting payment, and that the second letter stated that the lease was being terminated and "gave them until February 1st to remove their stock and equipment."

Appellant Clark also testified at the hearing. He said that, beginning in December 2000, he and appellant Pasley attempted to contact George on multiple occasions, but that they were unable to reach him. Clark acknowledged that he and Pasley received a letter requesting payment for rent. Clark said that he and Pasley attempted to pay George in late January 2001, but their checks were returned. Pursuant to an order entered on December 5, 2001, the trial court found that appellee was entitled to a writ of possession.

At a hearing on damages in April 2004, there was testimony that George had hired an excavator, John Sterling, to clean up a pond on the leased property because it was littered with trash. Sterling testified that the pond was filled with "a little bit of everything ... water heaters, and you know, parts of houses just [thrown] off in there." Appellee also introduced a videotape that was taken approximately two to three years before trial and that apparently depicted the pond with a large amount of debris and trash in it.

During the hearing on damages, appellants attempted to introduce pictures of the pond that were apparently taken the day before trial, claiming that the pictures showed no damage to the pond. The trial court refused to admit the pictures into evidence, stating as follows:

[T]his case has been going on for some period of time, and there have been opportunities to properly get pictures of the area. I think that when you go out the day before trial to get the pictures, it's a little late, because you cannot share those with the other counsel, nor has he the opportunity ... to do something else. I am not going to admit the pictures.

Following the hearing, the trial court entered an order awarding the following to appellee: $1,000 in unpaid rent; $5,000 for clean-up costs; $3,600 in attorney's fees; and $170 in court costs.

As their first point on appeal, appellants contend that the trial court erred as a matter of law when it awarded damages to appellee in addition to rent. Specifically, they argue that there is no basis in law, statutory or otherwise, for awarding damages to appellee over and above the unpaid rent. However, appellants failed to raise any objection to the issue of damages below. We decline to reach the merits of this argument because we do not address arguments made for the first time on appeal. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000).

Appellants next contend that the trial court erred in refusing to admit photographs of the pond which, according to appellants, showed no damage to the area. However, appellants failed to proffer the photographs below. Failure to proffer evidence so that we can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Duque v. Oshman's Sporting Goods Servs., Inc., 327 Ark. 224, 937 S.W.2d 179 (1997). Because appellants failed to proffer the photographs in question, we are unable to address appellant's contention on appeal.

Even if appellants had proffered the photographs, we find no error by the trial court in refusing to admit them. Our supreme court has specifically recognized that the admission of photographs is a matter that rests largely within the discretion of the trial court, and we will not reverse the holding of that court unless there has been an abuse of discretion. Ransom v. Weisharr, 236 Ark. 898, 370 S.W.2d 598 (1963).

In the case at bar, appellant Pasley took the photographs of the property in question and testified that they represented the status of the property as of the day before the hearing. It is clear that this matter had been pending for a number of years and that appellants never produced any pictures of the property until the day of the hearing on damages. It is also clear that appellee's counsel never had an opportunity to view the photographs until the day of the hearing. We agree with the trial court that appellants waited too late to produce the photographs; thus, we cannot say that the trial court abused its discretion in refusing to admit the pictures into evidence in this case.

Affirmed.

Glover and Roaf, JJ., agree.