Harness v. Curtis

• Decision Date: 22 September 2004
• Docket Number: No. CA 03-1437.,CA 03-1437.
• Citation: 192 S.W.3d 267,87 Ark. App. 337
• Parties: Mark HARNESS, Appellant v. Buddy CURTIS and Rose Curtis, Appellees.
• Court: Arkansas Court of Appeals

192 S.W.3d 267

87 Ark. App. 337

Mark HARNESS, Appellant v. Buddy CURTIS and Rose Curtis, Appellees.

No. CA 03-1437.

Court of Appeals of Arkansas, Division II.

September 22, 2004.

Daniel Murray Traylor, Little Rock, for appellant.

Kristi A. Mattes, Jacksonville, for appellee.

JOSEPHINE LINKER HART, Judge.

Appellant, Mark Harness, appeals from the circuit court's decision granting appellees, Buddy Curtis and Rose Curtis, possession of real property and awarding them damages in the amount of $5,000 after concluding that appellant, as the purchaser, materially breached the parties' contract. He also appeals from the circuit court's denial of his claim for the damages that resulted from his wrongful dispossession. We hold that the trial court erred in enforcing a forfeiture of appellant's contractual rights, in awarding damages to appellees, and in refusing to award damages to appellant.

On November 17, 1994, the parties entered into a contract in which appellant agreed to purchase, for $35,000, a tract of real property on which a doublewide mobile home, a "body shop" garage, and a storage shed were located. Appellant paid $5,000 in cash and agreed to pay the balance of $30,000 in monthly installments of $295.15. The parties agreed that time was of the essence and that, "if [appellant] default[ed] in the payment of any installment of principal and interest for a period of thirty (30) days," or violated any of the other covenants, appellees could either declare the entire debt due and payable or rescind the agreement. Further, the agreement provided that upon recission of the agreement, all money paid by appellant would be retained by appellees as rent, and after notice, appellees could demand possession of the property. The parties also agreed that the "agreement shall not be sold, transferred or assigned without written consent of [appellees], and in the event of any sale, assignment or transfer, without written consent, [appellees] shall have the right to exercise the options herein before provided. . . ." Appellant agreed that he "shall not commit or permit waste; and shall maintain the property in as good condition as at present," and "[u]pon any failure so to maintain, [appellees] may cause reasonable maintenance work to be performed at the cost of [appellant]."

For the first time in seven years, appellant was eight days late with a monthly payment in December 2001. On December 9, 2001, appellees had the sheriff serve appellant with a notice to vacate the property within ten days. On January 14, 2002, appellees filed an unlawful-detainer complaint alleging that appellant had agreed to make monthly payments on the first of each month "with no grace period" and that appellant had breached the agreement by failing to make the December 1, 2001, payment and by committing waste upon the property. Appellant filed a counterclaim requesting damages for wrongful dispossession.

At a preliminary hearing held February 19, 2002, appellee Buddy Curtis testified that appellant had always made his payments on time but, in December 2001, no payment was forthcoming. He said that on the ninth or tenth of December, he went to the residence to see what had happened and observed that appellant "had turned the place into a junk yard. . . ." He testified that there were thirty-five to forty vehicles parked on the property and that there was "trash everywhere." He learned that appellant was in jail and that appellant's daughter, Melissa Davis, and his brother, Richard Harness, were present on the premises. He told Richard that the agreement "was void." Richard gave him a copy of a "contract" between Richard and appellant that provided that, on October 1, 1996, appellant had sold to Richard "1 parcel of land at 5324 Wordsmith Trail, North Little Rock[,] Ark[.]" with the "property measuring 90 ft. length by 30 ft. width lying on the east side of garage for the sum of $2,500.00." Curtis testified that, although the parties' agreement provided that appellant was not supposed to "sell anything," he had "sold something." At this hearing, the circuit court concluded that appellees had established a prima facie case of unlawful detainer and issued a writ of possession, with a trial to be held on a later date.

At the June 28, 2002, trial, the court considered testimony given at the earlier hearing and heard additional testimony. On cross-examination, Mr. Curtis admitted that the agreement was prepared by his attorney. He also admitted that, according to the contract, appellant had until the end of December 2001 to make the December payment. He also admitted that he had not asked appellant to clean up the property because he "no longer wanted to be associated with" appellant.

Following the hearing, the judge ruled that there was an enforceable land-sale contract and that appellant had breached it. When asked to specifically state his findings of fact and conclusions of law, he said that the conveyance to Richard in October 1996 and the late payment were breaches of the contract. The court's written order provided that appellant had materially breached the contract, that the funds paid by appellant would be considered rent for the period that appellant had occupied the property, and that appellees were entitled to remain in possession of the property. The order awarded appellees $5,000 for damages to the property and $350 in attorney's fees. This appeal followed.

The standard that we apply when we review a judgment entered by a circuit court after a bench trial is well established. We do not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark.App. 185, 984 S.W.2d 47 (1998).

Appellant argues on appeal that the trial court erred in: (1) awarding possession of the property to appellees; (2) awarding damages in the amount of $5,000 to appellees for repairs they made to the property after appellant was ejected; (3) refusing to award appellant damages that he sustained as a result of his wrongful dispossession of the property. We agree with appellant on all points. Appellant contends that the trial court should have treated the contract as a mortgage giving him an equity of redemption. We need not address that issue, however, because appellant did not sufficiently breach the agreement to warrant forfeiture of his rights thereunder. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996). However, a relatively minor failure of performance on the part of one party does not justify the other seeking to escape any responsibility under the terms of the contract. Vereen v. Hargrove, 80 Ark.App....