Garrett v. Fite
Annotate this Case
Download PDF
Cite as 2009 Ark. App. 869
ARKANSAS COURT OF APPEALS
DIVISION IV
No.
CA09-238
RICKY R. GARRETT and SIGRID
GARRETT,
APPELLANTS
Opinion Delivered 16
DECEMBER 2009
V.
APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT,
[NO. CV-2007-309 II]
THOMAS L. FITE,
THE HONORABLE MICHAEL
MEDLOCK, JUDGE
APPELLEE
AFFIRMED
D.P. MARSHALL JR., Judge
After a bench trial, the circuit court rejected Ricky and Sigrid Garrett’s claim for
specific performance of a land contract with Thomas Fite. The court concluded that
a combination of circumstances––Fite’s health, his relationship with his son-in-law
(who was the real estate agent for him and the Garretts), and his frustration with his
land dealings––resulted in Fite making a contract setting an unconscionable price of less
than one-third of the land’s appraised value. The Garretts appeal, arguing that the
circuit court’s decision was clearly erroneous and contrary to Arkansas law.
Specific performance is an equitable remedy that calls on the court’s conscience.
“[S]tripped of technicalities and red tape[,]” a court in equity does justice after
Cite as 2009 Ark. App. 869
balancing the interests of all parties. Poff v. Brown, 374 Ark. 453, 455–56, 288 S.W.3d
620, 622–23 (2008) (citations omitted). The court can deny specific performance if a
contract is unconscionable or supported by inadequate consideration. Howard W.
Brill, Specific Performance in Arkansas, 1995 ARK. L. NOTES 17, 20. Here, the circuit
court married these two grounds; it found an “unconscionable price” and voided the
contract “for inadequacy of price and insufficient consideration.”
Inadequate consideration, standing alone, must shock the court’s conscience to
justify setting aside a contract. E.g., Braswell v. Brandon, 208 Ark. 174, 177–78, 185
S.W.2d 271, 273 (1945). Otherwise, inadequate consideration must be accompanied
by proof of other material circumstances such as a weakness of understanding, fraud,
imposition, mutual mistake, or one party’s position of influence over the contracting
party. Luther v. Bonner, 203 Ark. 848, 855–56, 159 S.W.2d 454, 457–58 (1942).
Whether specific performance should be granted always raises a question of fact on the
equities of a particular case. Mitchell v. House, 71 Ark. App. 19, 21–22, 26 S.W.3d 586,
587–88 (2000).
We see no clear error in the circuit court’s answer here. This parcel was
seventy-three acres. Its value was significantly greater than the contract price. Land
appraiser Don Burris’s testimony most impressed the court on this point. He set the
parcel’s fair market value at $368,000.00––more than three times the $104,000.00
-2-
Cite as 2009 Ark. App. 869
contract price. Fite and his son, who built and sold houses, agreed with Burris’s
assessment. This was strong––if not conclusive––evidence of inadequate consideration.
The record also shows that Fite was vulnerable at the time of contracting. He
had gout. And he was depressed about in-fighting among his children. Fite’s physician
observed this deteriorated mental state, opining that Fite “could not make good
financial decisions.” In Fite’s own words, “I was just would have loved to fell in a
place to just gone off and left everything. . . . I didn’t––didn’t care what happened
really.” Fite’s son had decided to not list property with Fite’s son-in-law, real estate
salesman Ken Wintory. This was one source of the family conflict. But Wintory
ended up representing both the Garretts and Fite in their real estate contract. Though
Wintory had served the Garretts for months, Fite did not list the parcel with Wintory
until the day the disputed contract was signed. According to Fite, Wintory made four
separate visits to Fite’s home that day. As Fite testified, he simply “gave in and signed
it.” Fite, however, did not sign the contract in his capacity as a trustee, despite having
put all of his remaining property into trust just two months before. The Garretts and
Fite never met.
This record is not one-sided. The Garretts offered some proof of the fairness of
the contract price and of Fite’s mental stability. Wintory used a formula to arrive at
the $104,000.00 contract price. Fite admitted that he would have accepted nothing
-3-
Cite as 2009 Ark. App. 869
less than $100,000.00 two years before the contracting. At that time, though, he was
in a different financial condition and mistaken about the parcel’s size. After signing one
contract with the Garretts, Fite asked Burris to survey the land. When he discovered
that the parcel was significantly larger, Fite had the presence of mind to include real
estate covenants in the second, final contract. And while he did not initially object to
the contract’s price, Fite canceled his daughter’s power of attorney almost immediately.
She was married to Wintory.
The circuit court’s judgment fairly summarized all the proof from the witnesses
and the documents.
The Court finds the testimony of Mr. Don Burris, a professional
appraiser, concerning the value of the land compelling. An appraised
value of more than three times the sale price contemplated by the real
estate contract is reason for concern. A knowledgeable person dealing in
real estate under normal circumstances would not sell property for less
than one-third its value. There was no evidence that the Defendant,
Tom Fite, needed the sale or that the sale was distressed. This Court
finds that as a result of a combination of all the factors identified in the
findings of fact including the Defendant’s health, his relationship with his
son-in-law and his frustration with his land dealings, the Defendant
entered into a contract with an unconscionable price.
On this record, the court voided the contract. And where there are two permissible
views of the evidence, the fact-finder’s choice between them cannot be clearly
erroneous. Mitchell, 71 Ark. App. at 21–22, 26 S.W.3d at 587–88.
Nor are we persuaded that the circuit court’s conclusion was contrary to
-4-
Cite as 2009 Ark. App. 869
Arkansas law. The court’s factual findings about the inadequate price and Fite’s
vulnerability justified denying the Garretts specific performance. Luther, 203 Ark. at
855–57, 159 S.W.2d at 457–58; see also T-1 Construction, Inc. v. Tannenbaum
Development Co., LLC, 2009 Ark. App. 169, at 7, ___ S.W.3d ___, ___. The supreme
court voided a contract (as well as a deed) in Luther when an inadequate price was
accompanied by evidence of mental distress and one party’s influential position amidst
that weakness. 203 Ark. at 855–57, 159 S.W.2d at 457–58. Here, the court made a
similar finding; it balanced the equities and invalidated the contract. Arkansas law
required nothing more. Mitchell, 71 Ark. App. at 21–22, 26 S.W.3d at 587–88 (2000).
Affirmed.
GRUBER and HENRY, JJ., agree.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.