Hegg v. Dickens, CA
| Decision Date | 26 January 1983 |
| Docket Number | No. CA,CA |
| Citation | 7 Ark.App. 139,644 S.W.2d 632 |
| Parties | Stanley HEGG, Appellant, v. Markel E. DICKENS and Wife, Neda Faye Dickens, Appellees. 82-178. |
| Court | Arkansas Court of Appeals |
Highsmith, Gregg, Hart & Farris by Phillip Farris, Batesville, for appellant.
Brazil, Roberts & Clawson by Charles E. Clawson, Jr., Conway, for appellees.
This is the second appeal in this case. In the first case, Hegg v. Dickens, 270 Ark. 641, 606 S.W.2d 106 (Ark.App.1980), this Court reversed the trial court's finding that the appellant's counterclaim which was based on fraudulent misrepresentation was without merit. We remanded the case for a trial on the issue of damages, with the measure of damages being the "difference between the real value of the property in its true condition at the time of the transaction and the price for which he purchased it." On retrial, the trial court found that the appellant had been damaged in the sum of $2,000.00. From that decision, comes this appeal.
On remand, various witnesses testified regarding the value of the property in question. The appellant's expert witness, Mr. R.M. Weaver, testified that his opinion as to the value of the property in question was $50,000.00. The trial court found that testimony to be unreliable because of the basis on which it rested. The trial court noted that Mr. Weaver had viewed the property only the evening before, had considered no comparable sales in the vicinity, and had formed his opinion based on his limited observation of the property and the testimony of the appellees' expert witnesses. One witness for the appellee testified that she had attempted to purchase the property herself for a price of $75,000.00. Another witness testified that he believed the property had a value of between $85,000.00 and $95,000.00. The trial court found that the value of the property was $85,000.00, and awarded the appellant judgment accordingly.
The appellant argues that, because of the fraudulent misrepresentation concerning the net income, the appellant must have been damaged more substantially than $2,000.00 since he paid $87,500.00 for the property based on the representation of its net income. That is a compelling argument, but not necessarily true. It would certainly be possible for an individual to purchase property, having been fraudulently induced to do so, and yet the property still have a fair market value equal to or in excess of the price actually paid. Hence, in such a situation, the purchaser would suffer no actual damages, although he had been fraudulently induced into making the purchase.
In chancery cases, we review the record de novo, but we will not reverse the chancellor on appeal unless his findings of fact are clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Arkansas Rules of Civil Procedure, Rule 52(a), Ark.Stat.Ann. Vol. 3A (Repl.1979); Reeder v. Arkansas Louisiana Gas Co., 6 Ark.App. 385, 644 S.W.2d 291 (1982); Baugh v. Johnson, 6 Ark.App. 308, 641 S.W.2d 730 (1982).
There was conflicting evidence regarding the value of the property and the chancellor, after having heard all the witnesses, determined that the credibility of the appellees' witnesses was greater than the credibility of the appellant's expert witness. Although the appellees' witnesses used comparable sales from the city of Conway which concerned larger motel units, they testified that they had taken into consideration the difference in the size of the towns and the size of the motels in arriving at the value opinions.
Although this is a close case, and one which we might have decided differently had we been sitting as the trier of fact, with the opportunity to judge the demeanor of the witness, we cannot say that the trial court's finding is clearly erroneous or against the preponderance of the evidence. Therefore, we must affirm.
Affirmed.
R.M. Weaver, the appellant's expert witness, testified as to his real estate experience. He received his broker's license in 1968 and was one of the first G.R.I.'s (Graduate Real Estate Institute) in the state. He had attended approximately eighty-five short courses all over the nation dealing primarily with appraisals of light commercial real estate. He also had experience in brokering, owning, and selling restaurants and motels and was of the opinion that the fair market value of the Hickory House Motel and Cafe on February 12, 1979, was $50,000.00. As an expert witness, Weaver was permitted to remain in the courtroom and hear the other witnesses testify. His opinion as to the value of the property was based primarily on the fact that Mr. and Mrs. Dickens purchased the property in 1977 for $45,000.00 and spent another $5,000.00 in repairs for a total investment of $50,000.00. The actual purchase price in 1980 at the foreclosure sale was $49,500.00, out of which $2,967.81 was for attorney fees, taxes, and court costs.
The Dickens were required to produce income tax and sales tax records for the years that they owned the motel and restaurant. The sales tax records had apparently burned. Mrs. Dickens testified that they had never run both the motel and restaurant themselves for a year because "they had it leased or something." The Schedule C income tax return listed a net profit of $3,131.50 for the year 1977. After the year 1977, she leased the restaurant for three years. The people to whom she leased it kept it one year and the Dickens took it back in November of 1978. She testified that she leased it most of the year 1978 and the lease price was $400.00 per month. Mrs. Dickens stated that she didn't have her books for the year 1978 and couldn't remember how much she had netted off the operation of the motel. She did testify that she lost money in the operation of the business. Mrs. Dickens also said that the bank would not loan them more than $40,000.00 on the motel and cafe in 1977. Later that amount was increased to $45,000.00.
The appellees introduced testimony from two expert witnesses. Dennis Miller had been a licensed real estate broker for four years in Conway. He was the listing broker in the sale of the property to Hegg from the Dickens and had personally made $2,900.00 off the sale. His...
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Citizens Bank of Batesville v. Estate of Pettyjohn
...court vote to reverse the case should be affirmed. Normally a tie vote of the court of appeals results in affirmance. Hegg v. Dickens, 7 Ark.App. 139, 644 S.W.2d 632 (1983). However, when the court sits in divisions of three, a unanimous vote will either reverse or Amendment 58 to the Const......
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