Childs v. Adams

• Decision Date: 13 November 1995
• Docket Number: No. 94-598,94-598
• Citation: 322 Ark. 424,909 S.W.2d 641
• Parties: , 58 A.L.R.5th 843 Callis L. CHILDS, Appellant/Cross-Appellee, v. Jerry ADAMS, Appellee/Cross-Appellant.
• Court: Arkansas Supreme Court

Page 641

909 S.W.2d 641

322 Ark. 424, 58 A.L.R.5th 843

Callis L. CHILDS, Appellant/Cross-Appellee, v. Jerry ADAMS, Appellee/Cross-Appellant.

No. 94-598.

Supreme Court of Arkansas.

Nov. 13, 1995.

Charles E. Clawson, Jr., Conway, for Appellant.

Wm. C. Adkisson, Conway, for Appellee.

CORBIN, Justice.

Appellant, Callis L. Childs, appeals the amended decree of the Faulkner County Chancery Court, filed March 16, 1994, granting specific performance of a contract for the sale of appellant's residence to appellee, Jerry Adams. Appellee cross-appeals from that portion of the amended decree denying his request for attorney's fees. Jurisdiction of this case is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(3) and (a)(8).

We review chancery cases de novo. Osborne v. Power, 318 Ark. 858, 890 S.W.2d 570 (1994). However, in reviewing the chancellor's findings, we will not reverse unless they are clearly erroneous or clearly against a preponderance of the evidence, and the burden is upon the appellant to show that the findings are erroneous. Id.; Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993); ARCP Rule 52(a).

I. Direct appeal

A. Authority of the trial judge

Appellant first argues that the consent decree entered in Hunt v. State of Arkansas, Number PB-C-89-406 (E.D.Ark. November 7, 1991, as amended September 24, 1992) ("Consent Decree"), ended the elective term of office of Chancellor Lawrence E. Dawson of the 11th West Judicial District effective December 31, 1992, and, therefore, the Chief Justice of this court was without authority to subsequently assign him to hear this case upon the recusal of the trial judges of the 20th Judicial District. Appellant does not challenge the jurisdiction of the chancery court itself over this action. Appellant concedes he raises this issue for the first time on appeal, but characterizes it as one of subject matter jurisdiction that must be reviewed. We disagree.

Appellant's challenge to Chancellor Dawson's authority does not raise an issue of subject matter jurisdiction. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992). In Simpson, the appellant argued for the first time on appeal that the chancellor and probate judge who tried that criminal case in the circuit court lacked subject matter jurisdiction to do so. This court ruled that the issue presented was not one of subject matter jurisdiction, and, accordingly, refused to consider the issue because it was not preserved for appeal. This court stated:

Subject matter jurisdiction, however, is determined from the pleadings, and once a proper charge is filed in circuit court, that court may exercise jurisdiction over that subject matter.... Moreover, jurisdiction is granted to a particular position, that is, to a particular court, and not to the person who fills it.... Here, the [circuit court] clearly had jurisdiction over the two rape charges and the issue raised by Simpson concerns the authority of the individual who filled that position. As was the case in Nation [v. State, 283 Ark. 250, 674 S.W.2d 939 (1984) ], that issue relates to the authority of the sitting judge and not to the jurisdiction of the circuit court.

310 Ark. 493, 499, 837 S.W.2d 475, 478 (citations omitted). Accord Bradford v. Bradford, 49 Ark.App. 32, 894 S.W.2d 616 (1995) (holding the appellant's objection to the authority of a circuit judge to hear his divorce case in chancery was waived for failure to raise it below).

The present case, arguably, is distinguishable from Simpson because appellant asserts that Chancellor Dawson was "not a judge at all" as a result of the Consent Decree. Yet, appellant has failed to abstract the facts necessary for us to assess the effect of the Consent Decree upon Chancellor Dawson's judgeship, which determination is prerequisite to any consideration of appellant's argument on its merits. Further, the portion of the record pertinent to this issue does not reveal the assignment of Chancellor Dawson was invalid. In our recent decision, Neal v. Wilson, 321 Ark. 70, 75, 900 S.W.2d 177, 179 (1995) (per curiam), we held that, where the record reflected the challenged assignment of the trial judge was valid, the assignment gave him jurisdiction to try the case, and stated:

It is the parties' or trial court's responsibility to apprise this court as to whether an assignment is necessary under Act 496. Once that assignment is made, that responsibility continues. Clearly, it is not this court's task, on its own volition, to discover or monitor whether the circumstances have changed to warrant the termination of an assignment or reassignment.

On this record, appellant's first assignment of error fails.

B. Attorney disqualification

Appellant next argues that the trial court erred in refusing to disqualify appellee's attorneys, William C. Adkisson and Larry E. Graddy. Appellant filed a pretrial motion to disqualify, alleging that Adkisson was a business partner of Graddy, that Graddy had counseled with appellant regarding the contract for the sale of appellant's residence, and that the resulting conflict of interest disqualified Adkisson. At the hearing on the motion to disqualify, appellant argued that Graddy's conflict of interest also disqualified Graddy. We affirm the trial judge's denial of the motion to disqualify.

The evidence introduced at the hearing revealed that, in May 1993, appellant presented appellee with a written offer to swap appellant's residence for real property owned by appellee, plus cash. The swap offer was drafted by appellant, who is a practicing attorney, but was never accepted by appellee. Graddy's purported conflict of interest arises from certain conversations between him and appellant regarding the proposed swap transaction. In June 1993, the sale contract that is the subject of this appeal was executed by the parties. The sale contract was drafted by Graddy as legal counsel for appellee.

As regards the proposed swap transaction, appellant testified that he drafted the swap offer after speaking with Graddy about the swap transaction at least twice, once by telephone and once at the county courthouse. Appellant testified that he had asked Graddy for drafting suggestions regarding the swap offer. Appellant testified that he did not send Graddy a copy of the swap offer, could not remember if he notified Graddy that the swap offer had been sent to appellee, and was charged no fee by Graddy. Appellant testified that he had questioned Graddy's competence to handle a swap transaction, and that it was his understanding and intent that Graddy would handle the transaction for him. Graddy testified that appellant called him at least once about a contemplated swap of his residence, and that his recollection of that conversation was "that [appellant] was simply trying to be sure that a swap could take place and that the title could be cleared and that good--an insurance policy, without exceptions, could be given to both parties." Graddy testified that he never considered appellant's conversations with him to be a request for legal services. Graddy testified that, although he could not recall if appellant had initially disclosed that appellee was the other party to the proposed swap transaction, that disclosure was made in May 1993.

As regards the sale contract, appellant testified that he had not consulted with Graddy in any way, and that appellee had disclosed to him that Graddy would be preparing the sale contract. Graddy testified that he considered his representation to have been for appellee exclusively, and that he had disclosed to appellee his contact with appellant about the proposed swap transaction.

Graddy testified that he periodically responded to requests from appellant for advice about various legal matters relating to appellant's clients. Graddy testified that he never billed appellant or was paid by him for these legal advices. Graddy characterized his relationship with appellant as friendship and testified that he had never represented appellant in any matter.

At the conclusion of the hearing, the trial court announced from the bench that the conversations between appellant and Graddy "have just been friendly conversations.... rather than any kind of a [sic] attorney-client relationship." The trial court's finding that no attorney-client relationship existed between Graddy and appellant is not clearly erroneous or against the preponderance of the evidence. Hence, appellant has failed to show Graddy had a conflict of interest that required his disqualification. Accordingly, we do not address appellant's contention that the trial court erred in denying his motion to disqualify Adkisson on the theory that Graddy's purported conflict of interest should have been imputed to Adkisson.

C. Contract formation

Appellant next argues that the trial court erred in ruling that the sale contract was a valid and binding offer and acceptance. The express terms of the sale contract required appellant, as the offeree, to sign and physically deliver the sale contract to appellee, as the offeror, prior to 12:00 noon on June 15, 1993. At trial, the parties offered conflicting testimony regarding the time of day that the signed sale contract was delivered to appellee on June 15, 1993. The trial court made no finding of fact on this issue and held it was unnecessary "to resolve the disparity in this testimony due to its finding that the parties by their actions waived contractual provision, resulting in an enforceable agreement of sale."

An offer which specifies a period of time for its duration, such as appellee's offer, terminates upon the lapse of the specified time. Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978); Burnett v. Holiday Inns of America, 239 Ark. 642, 391 S.W.2d 27 (1965). A terminated offer cannot later be accepted. McClure Ins. Agency v. Hudson, 238 Ark. 5, 377 S.W.2d 814 (1964) (offer terminated by offeree's express rejection). Substantial authority...