869 S.W.2d 709 (Ark. 1994), 93-172, Grandjean v. Grandjean

Docket Nº:93-172.
Citation:869 S.W.2d 709, 315 Ark. 620
Opinion Judge:[15] The opinion of the court was delivered by: Jack Holt, Jr., Chief Justice.
Party Name:Michael GRANDJEAN, Appellant, v. Patrick GRANDJEAN, Appellee.
Attorney:[13] Mike Wilson, for appellant. [14] Diana M. Maulding, for appellee.
Case Date:January 31, 1994
Court:Supreme Court of Arkansas
 
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Page 709

869 S.W.2d 709 (Ark. 1994)

315 Ark. 620

Michael GRANDJEAN, Appellant,

v.

Patrick GRANDJEAN, Appellee.

No. 93-172.

Supreme Court of Arkansas.

January 31, 1994.

[315 Ark. 621] Mike Wilson, Jacksonville, for appellant.

HOLT, Chief Justice.

The appellant, Michael Grandjean, raises a single point for reversal in this appeal from a decision of the Pulaski County Circuit Court. He argues that, as a matter of law, the trial court erred in awarding $1,000 in damages to his brother, appellee Patrick Grandjean, for false arrest.

On appeal, Michael Grandjean presents an argument that, in form, addresses the trial court's false-arrest finding but that, substantively, constitutes a defense based on the elements required for the tort of malicious prosecution. We hold that Michael Grandjean has effectively changed his grounds for appeal, having asserted a point for reversal under the rubric of malicious prosecution that was not, as such, considered by the trial court. We therefore are unable to consider his argument.

An appellant may not change the basis for his argument or raise a new argument on appeal; he is limited to what was requested in the trial court. See Oliver v. State, 312

Page 710

Ark. 466, 851 S.W.2d 415 (1993); Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).

Michael and Patrick Grandjean, together with two other brothers, James and Daniel Grandjean, shared equally in their father's estate upon his death in April 1991. By common agreement, Michael was named executor of the estate. Patrick was living at his father's house in Jacksonville at the time of his death. James moved in shortly thereafter.

The house was the major asset of the estate. By tacit understanding of the four brothers, Patrick and James, were allowed to continue residing in the house until the property could be sold. Several months later, a verbal agreement was struck under which [315 Ark. 622] Patrick and James would be allowed to purchase the interests of Michael and Daniel for $10,000 per share. Patrick and James then attempted to secure a loan from a bank but were unsuccessful.

In the meantime, Michael and his wife, Cathy, painted, cleaned, and repaired the interior and exterior of the house, for which Michael was subsequently compensated from proceeds of the sale of the house. (Michael also received remuneration in his capacity as administrator of the estate.) According to Michael, neither Patrick nor James made any effort to maintain the property or to assist in its restoration.

Michael had grown impatient with Patrick and James because of their inability or unwillingness to proceed with the purchase of the house. As administrator of the estate, he listed the house with a realtor in early September 1991. Upon consultation with the attorney for the estate, who represented all four brothers, Michael was advised that he could evict Patrick and James. Subsequently, he gave individual notices to the two brothers to vacate the premises by October 10, 1991, despite objections from his brother Daniel, who resided out of state.

When Patrick and James failed to move by the specified date, Michael went to the prosecuting attorney on October 24, 1991, and signed affidavits for arrest warrants for failure to vacate. The affidavits contained the following identical boilerplate language under the heading, "Facts Constituting Probable Cause":

I Michael John Grandjean, state that I /manage the property at 408 Braden Street, Jacksonville, Ar. The residence at that address is leased or rented to James Grandjean and Patrick Grandjean. They are behind on there (sic) rent, and were served with a (10) ten day notice to vacate on Oct 11, 1991. The residence has not been vacated and the rent has not been paid.

I...

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