Cherry v. State

Howard BUTLER v. Herman COMIC

95-215                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


1.   Torts -- deceit -- elements. -- Two of the five elements of
     the tort of deceit or fraud are justifiable reliance on the
     representation and damage suffered as a result of the
     reliance.

2.   Appeal & error -- argument based on constructive fraud not
     made to trial court -- not considered. -- Where appellant
     argued that the trial court erred because the doctrine of
     constructive fraud supported his claim despite the lack of
     evidence of reliance, but no such argument was made to the
     trial court, the appellate court declined to consider it.

3.   Torts -- transferred intent -- doctrine generally not applied
     in cases of misrepresentation -- exception. -- Although the
     doctrine of transferred intent is generally not applicable in
     cases of misrepresentation, where a document is intended to be
     directed to others in addition to the immediate recipient, or
     where it is customary for the document to be relied upon by
     third parties, the doctrine of transferred intent will be
     applied to support a case of misrepresentation; the element of
     the tort of deceit supplied by the doctrine is that of intent
     to deceive rather than that of reliance which the trial court
     found to be missing in the present case.

4.   Torts -- deceit -- trial court did not err in finding no
     evidence of reliance on chain of title. -- Where appellant
     argued that anytime one purchases real property there is
     reliance on the chain of title but cited no authority in
     support of that statement, the appellate court held that the
     trial court did not err in finding no evidence of reliance.


     Appeal from Pulaski Circuit Court; Robert Henry, Judge;
affirmed.
     Ralph Patterson, for appellant.
     Herman Comic, pro se.

     David Newbern, Justice.*ADVREP3*


                                   95-215
HOWARD BUTLER                      Opinion Delivered:  3/18/96

          Appellant                Appeal from Pulaski Circuit
                                   Court (CV 94-1154)
     v.
                                   Honorable Robert Henry,
HERMAN COMIC                       Circuit Judge

          Appellee                 Affirmed






                David Newbern, Associate Justice

     This is an appeal from a judgment in a deceit action.  Howard
Butler, the appellant, brought the action against the appellee,
Herman Comic, who is a notary public.  Mr. Butler claimed he had
suffered a loss because of a deed acknowledgment falsely notarized
by Mr. Comic.  Judgment was rendered in favor of Mr. Comic because
there was no showing that Mr. Butler had relied on the notarization
by Mr. Comic.  We affirm the judgment.
     The undisputed facts are as follows.  Two members of the
Mackintrush family, Johnny Mackintrush and his sister, presented a
deed to be notarized.  The quitclaim deed purported to be by ten
brothers and sisters in favor of their brother "Johnny Lee
Mackintrush."  Mr. Comic saw only the grantor "Johnny Mackintrush"
sign the deed and took the word of Johnny Mackintrush and his
sister that all the signatures were valid.  He notarized the
instrument, stating in his certificate that all the purported
grantors were known to him to be the persons whose names were
subscribed to the deed and that they "personally appeared" before
him to acknowledge their signatures.
     Thereafter, Johnny Lee Mackintrush sold the property by
warranty deed to Mr. Butler.  Mr. Butler purchased a homeowner's
policy from American General Property Insurance Company (American
General).  A fire loss occurred, and Mr. Butler claimed against the
policy seeking $20,000 for loss of a dwelling, $10,000 for loss of
contents, and $2,000 for living expenses.
     In the course of investigating the claim, American General
examined Mr. Butler's title and concluded not all of the signatures
on the deed to Johnny Lee Mackintrush were valid.  American General
refused to pay, and Mr. Butler joined his claim against it with his
claim against Mr. Comic.  American General settled by paying
$5,000, apparently on the basis that one or two of the signatures
might have been valid, and thus Mr. Butler owned some undivided
interest in the property.  The claim against American General was
dismissed.  Mr. Butler pursued his claim for the losses against Mr.
Comic.   
     One of the five elements of the tort of deceit or fraud is
"justifiable reliance on the representation"; another is "damage
suffered as a result of the reliance."  Roach v. Concord Boat
Corp., 317 Ark. 474, 880 S.W.2d 305 (1994); Wheeler Motor Co. v.
Roth, 315 Ark. 318, 867 S.W.2d 446 (1993).  Mr. Butler argues the
Trial Court erred because the doctrine of constructive fraud
supports his claim despite the lack of evidence of reliance.  No
such argument was made to the Trial Court, so we decline to
consider it.  Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709
(1994); Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993).
     Mr. Butler's only other argument is that the Trial Court
should have applied the doctrine of transferred intent.  As with
constructive fraud, we have no evidence that the doctrine of
transferred intent was presented by Mr. Butler to the Trial Court. 
It was, however, mentioned in the judgment, so we will answer the
argument briefly.  
     In Fidelity Mortgage Co. v. Cook, 307 Ark. 496, 821 S.W.2d 39
(1991), we explained that, although the doctrine of transferred
intent is generally not applicable in cases of misrepresentation,
when a document is intended to be directed to others in addition to
the immediate recipient, or where it is customary for the document
to be relied upon by third parties, the doctrine of transferred
intent will be applied to support a case of misrepresentation.  The
element of the tort of deceit supplied by the doctrine is that of
intent to deceive rather than that of reliance which the Trial
Court found to be missing in this case.
     Mr. Butler argues that anytime one purchases real property
there is reliance on the chain of title.  No authority is cited in
support of that statement.  Although Mr. Butler testified, he did
not even mention having examined Johnny Lee Mackintrush's title. 
The Trial Court did not err in finding no evidence of reliance.
     Affirmed.