Grisanti v. Zanone
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ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA08-63
RINALDO GRISANTI and TUSCAN
HILL, INC.
APPELLANTS
V.
GEORGE ZANONE III, ET AL.
APPELLEES
Opinion Delivered JULY
1, 2009
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. E2000-759]
HONORABLE JOHN N. FOGLEMAN,
JUDGE
AFFIRMED ON DIRECT APPEAL;
AFFIRMED ON CROSS-APPEAL
WAYMOND M. BROWN, Judge
Appellant Rinaldo “Ronnie” Grisanti1 appeals from the order of the Crittenden County
Circuit Court finding that he had not proved by clear and convincing evidence all of the
elements of an oral lease of real property owned or controlled by appellees George Zanone,
III; Zanone Plantation, J.V.; Zanone Properties, LLC; Zanone-Pitts, LLC; Leatherman Farms,
LLC; Shea Leatherman; William Leatherman; and Irwin Leatherman. This resulted in the
failure of Grisanti’s action for specific performance and Grisanti appeals. Despite having
found that Grisanti had failed to prove a key element of his claim by clear and convincing
evidence, the circuit court awarded him $14,000 for improvements made to the real property
1
Tuscan Hill, Inc., an entity formed by Grisanti to sublease the property from the
appellees is also an appellant in this action. For ease of writing, unless the context requires
otherwise, we will refer to Grisanti as if he were the sole appellant.
on the basis that appellees were unjustly enriched by the improvements. Appellees crossappeal from this award. We affirm on direct appeal and on cross-appeal.
Appellees control approximately 7,100 acres of land in eastern Arkansas. Prior to
1998, George Zanone, III, operated a duck-hunting club on these lands under the name of
Green River Gun Club. Later that year, Zanone’s family wanted him to become more
involved in the family farming business as farm manager. He sought out Grisanti, a member
of his club, to discuss the future of the club hunting on this property.
In February 1999, Zanone, acting individually and as agent for the other appellees,
met with Grisanti, Brian Loudermilk, Walter Montgomery, and Ed Couples for purposes of
negotiating a lease for the hunting rights to appellees’ property. The meeting occurred at the
“hill house,” which is also described as the Indian Mound house. There were discussions as
to the term of the lease, the annual rent, a royalty to be paid to Zanone, additional monies to
be paid to Zanone, what game could be hunted, and the hunting rights retained by Zanone
and his family. There were also discussions that Grisanti would make improvements to the
buildings on the property and whether he would be reimbursed for those improvements. In
the belief that the parties had an agreement, Grisanti tendered $10,000 to Zanone in May
1999 and another $10,000 on or about September 1, 1999. Grisanti also made improvements
to the property and prepared the fields for dove hunting. Prior to the September 1999 dove
season, Zanone informed Grisanti that he was bringing a large number of guests to hunt on
the first day of dove season. Grisanti objected, stating that this would interfere with the
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hunting rights he leased from appellees because his members could not hunt until the next
day. After the dispute arose, payment of the second check for $10,000 was stopped by
Grisanti.
On August 8, 2000, Grisanti filed his complaint alleging that appellees breached the
lease and seeking specific performance of the lease or damages. Appellees answered,
denying the material allegations of the complaint and asserting the statute of frauds as an
affirmative defense.
After a trial that was spread out over nineteen months and after receiving post-trial
briefs, the court entered its decree containing extensive findings of fact and conclusions of
law on June 18, 2007. The decree also stated which facts were found by clear and
convincing evidence and which were established by a preponderance of the evidence.
Essentially, the court found that the amount of the rent, the additional payments for
supportive services such as pumping water and leaving grain in the fields, the extent of the
property subject to the agreement, the royalty payment to Zanone, the term of the lease that
Grisanti would be allowed to operate the hunting club as long as appellees were farming the
land, and the term that the hunting club would not be allowed to hunt deer were established
by clear and convincing evidence. The court also found that some material terms of the lease,
such as the hunting rights retained by Zanone, were not established by clear and convincing
evidence. Because these terms failed, Grisanti’s cause of action failed. The court also found
that, although the hill house was livable prior to the time of the agreement, Grisanti had made
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substantial improvements to the hill house of at least $14,000 in the belief that there was an
agreement. The court found that these improvements benefitted appellees and ordered them
to pay Grisanti $14,000 in restitution. This appeal and cross-appeal followed.
Grisanti first argues that the circuit court erred in finding that he did not meet his
burden to prove all of the terms of the oral lease. A lease of the right to hunt and fish is an
interest that comes within the statute of frauds. State v. Mallory, 73 Ark. 236, 83 S.W. 955
(1904). Our statute of frauds prohibits the enforcement of oral leases for more than one year.
Ark. Code Ann. §4-59-101(a)(5) (Repl. 2001); Norton v. Hindsley, 245 Ark. 966, 435
S.W.2d 788 (1969). To take an oral contract out of the statute of frauds, the making of the
oral contract and its performance must be proved by clear and convincing evidence. Stewart
v. Stewart, 72 Ark. App. 405, 37 S.W.3d 667 (2001). The test on review is not whether this
court is convinced that there is clear and convincing evidence to support the circuit court’s
finding, but whether we can say that the finding that the disputed fact was proved by clear
and convincing evidence is clearly erroneous. Davis v. Davis, 48 Ark. App. 95, 890 S.W.2d
280 (1995).
In the instant case, Grisanti has the burden of proving the existence of a contract.
Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996).We keep in mind two
legal principles when deciding whether a valid contract was entered into: (1) a court cannot
make a contract for the parties but can only construe and enforce the contract that they have
made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled
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that in order to make a contract there must be a meeting of the minds as to all terms, using
objective indicators. Daimler Chrysler Corp. v. Smelser, 375 Ark. 216, ___ S.W.3d ___
(2008). The circuit court found that not all of the material terms of the oral agreement were
established by clear and convincing evidence. There was testimony that Grisanti wanted a
long-term lease and that he proposed a two-year lease with a five-year option. However, there
was testimony that, because of the uncertainty of farming, Zanone could not grant a longterm lease but would consider future leases after the first season. Further, there was no
evidence showing when or how any renewals would be exercised, or what would happen if
the Zanone family decided to stop farming prior to the end of the lease, which the circuit
court found that they did after 2001. One witness present at the February 1999 meeting
testified that he understood that the parties would have to agree every year for the lease to
continue. Likewise, the issue of the retained hunting rights was uncertain. Although it is not
disputed that appellees retained their hunting rights, it is not clear the extent to which those
rights were to be subordinated to the rights being leased to Grisanti. It was also not clear how
many “guests” the Zanone family could bring to hunt with them. Given our standard of
review, we cannot say that the circuit court was clearly erroneous in finding that all of the
terms of lease had not been proven by clear and convincing evidence.
We discuss Grisanti’s second point on appeal in conjunction with appellees’ sole point
on cross-appeal as both involve the circuit court’s award of restitution for improvements
Grisanti made to the property under an unjust enrichment theory. Grisanti argues that the
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award is too small, while appellees argue that there should not have been any award because
the improvements did not benefit them.
We find that there is ample evidence to support the circuit court’s finding. There was
testimony that appellees agreed to reimburse Grisanti for improvements to make the hill
house liveable. Some improvements were made for the 1998 duck season, and it is not
disputed the house was liveable by the time the February 1999 meeting was held. There was
also testimony that Grisanti went beyond making the house liveable by installing new
paneling, counter tops, appliances, and other furnishings. Other testimony established that
some work was done to improve the property, such as repairing the rutted driveway to the
house with gravel and establishing feed plots to draw game to the property. Grisanti testified
that he had spent over $30,000 in improvements for the property and house. Zanone
acknowledged that good hunting could increase the value of the property.
In general, recovery for unjust enrichment is based upon what the person enriched has
received rather than what the opposing party has lost. Sanders v. Bradley County Human
Servs. Pub. Facilities Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). The issue of unjust
enrichment is a question of fact. Wilson v. Lester Hurst Nursery, Inc., 269 Ark. 19, 598
S.W.2d 407 (1980). We cannot say that the circuit court was clearly erroneous in finding that
appellees benefitted by Grisanti’s improvements or in the amount of the award.
For his third point, Grisanti argues that the circuit court abused its discretion in not
awarding him his attorney’s fees pursuant to Arkansas Code Annotated section 16-22-308.
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We cannot discern that Grisanti filed a motion or otherwise requested an award of fees. He
did not include a specific prayer for attorney’s fees in his complaint. A party will not be
heard to complain on appeal that the circuit court did not grant him a particular kind of relief
if he did not request it. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000). Moreover,
the circuit court did not specifically rule on the issue. The burden of obtaining a ruling from
the court is on the party requesting such fees, and matters left unresolved below are waived
and may not be relied upon on appeal. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849
S.W.2d 938 (1993).
Affirmed on direct appeal; affirmed on cross-appeal.
R OBBINS and G RUBER, JJ., agree.
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