Price v. Willbanks

• Decision Date: 16 December 2009
• Docket Number: No. CA 09–226.,CA 09–226.
• Citation: Price v. Willbanks, 2009 Ark. App. 849, 374 S.W.3d 28 (Ark. App. 2009)
• Parties: Cliff PRICE and Linda Price, Appellants v. Walter WILLBANKS and Jerrie L. Willbanks, Appellees.
• Court: Arkansas Court of Appeals

2009 Ark. App. 849

374 S.W.3d 28

Cliff PRICE and Linda Price, Appellants

v.Walter WILLBANKS and Jerrie L. Willbanks, Appellees.

No. CA 09–226.

Court of Appeals of Arkansas.

Dec. 16, 2009.

The Henry Firm, P.A., Little Rock, by: Matthew M. Henry, for appellants.

Lightle & Raney, LLP, Searcy, by: Donald P. Raney, for appellees.

LARRY D. VAUGHT, Chief Judge.

[Ark.App. 1]Appellants Linda and Cliff Price argue two main points on appeal in this land-sale case.First they claim that the trial court erred in its decision to admit the testimony of an expert witness for appellees Jerrie and Walter Willbanks who was not identified during the discovery; second they argue that the trial court erred in its conclusion that the writing was an enforceable land contract.We see no reversible error and affirm the decision of the trial court.

This case involves a written agreement entered into by the parties concerning a tract of real property.According to the Prices, on February 23, 2005, they entered into preliminary negotiations to sell a portion of their land to the Willbankses.The Prices claim that their “hastily drafted” agreement merely “memorialize[d] the privilege of the Willbankses to come onto [the Prices'] property [to care for the Prices' horses] as well as the future intent of the Prices to possibly sell land to the Willbanks[es].”The Willbankses claim that the contract was not preliminary in nature and that it did in fact memorialize the land-sale agreement between the two [Ark.App. 2]parties.The writing ¹ in question states:

LAND CONTRACT

THIS CONTRACT IS BETWEEN WALTER AND JERRY WILLBANKS & CLIFF AND LINDA PRICE

I CLIFF AND LINDA PRICE BOUGHT30.24 ACRES FOR 60,000.00 DOLLARS, PAYMENTS 600.00(595.00) DOLLARS A MONTH.

WALTER WILLBANKS AND JERRY WILLBANKS WHO TAKE'S CARE OF OUR LIVE STOCK (HORSES).

WILL HAVE TO MOVE ON THE30.24 ACRES IN ORDER TO RUN THE RANCH..

THEYWILL BE BUYING15 ACRES OF SAID LAND..THEY WILL BE BUYING THE AREA MENTION IN THIS CONTRACTOR WHICH IS

THE FRONT HALF OF THE PROPERTY NORTH/SOUTH WITH GRAND AVE..WITH EAST/WEST HARTZEL LAND AND EAST/WEST

OF GRIFFITH LANE ... ADDRESS IS502 SOUTH GRAND MCRAE, AR.

WE THE OWNER AND SELLER CLIFF AND LINDA PRICE WILL BE SELLING TO THE BUYER WALTER AND JERRY WILLBANKS

THE SAID15 ACRES FOR 300.00 PER MOTH(handwritten notation of “$30,000 total”), IF THEY DEFAULT ON PAYMENTS AFTER90 DAYS IT WILL BE RETURNED TO THE

SELLER WHICH IS CLIFF AND LINDA PRICE ... IN THE EVENT OF UNFOR SENT PROBLEM CODY WILLBANKS CAN COMPLETE..THIS CONTRACT..

THIS IS JUST A ROUGH DRAFT..INCASE SOMETHING HAPPENS TO

THE OWNER..WALTER AND JERRY WILLBANKS WILL BE PERTECTED..

+-----------------------------------------+
                ¦SIGN: CLIFF PRICE         ¦DATE 2–23–2005¦
                +--------------------------+--------------¦
                ¦SIGN: LINDA PRICE         ¦DATE 2–23–2005¦
                +--------------------------+--------------¦
                ¦SIGN WALTER WILLBANKS     ¦DATE 2–23–2005¦
                +--------------------------+--------------¦
                ¦SIGN JERRIE WILLBANKS     ¦DATE 2–23–2005¦
                +-----------------------------------------+
                

On July 18, 2007, the Prices filed an action for ejectment and unlawful detainer against the Willbankses.On November 7, 2007, the Prices filed a motion for summary judgment asserting that the writing was not a land contract because it lacked a legal description of the real [Ark.App. 3]property and was missing essential terms.Following a hearing in October 2008, the trial court ruled that the proof did not support a writ of prohibition (as ultimately requested by the Prices).The Willbankses filed a counterclaim for declaratory judgment and specific performance on October 13, 2008.

A hearing on the Willbankses' counterclaim was scheduled for November 24, 2008.At this hearing, the Willbankses called surveyor Kenneth Hazlewood as an expert witness to testify about how he used the property description in the writing to perform a survey on the fifteen acres of property.The Prices objected to the witness being called, claiming that they were not put on notice of his testimony through discovery.The trial court allowed the testimony but afforded the Prices a recess to become familiar with the survey that Hazlewood had prepared.On December 8, 2008, the trial court issued an order granting the Willbankses the relief they requested.That order is the subject of this timely appeal.

At the outset we note that this case was heard as a bench trial, so we must consider only whether the trial court's findings were clearly erroneous or clearly against the preponderance of the evidence.Crooked Creek III, Inc. v. City of Greenwood,352 Ark. 465, 101 S.W.3d 829(2003).Further, when there is testimony in conflict on the issue of whether the parties agreed to the terms of a contract, a factual question arises that is to be determined by the trial court.Country Corner Food & Drug, Inc. v. Reiss,22 Ark.App. 222, 227, 737 S.W.2d 672, 674(1987).And, a factual finding will not be reversed so long as there is evidence to support the trial court's finding.Id.,737 S.W.2d at 674.

We first consider the Prices' primary point on appeal—the validity and effect of their [Ark.App. 4]self-titled “Land Contract.”They argue that the document was not a contract; the Willbankses counter that it was.These converse positions are both predicated on a mutual understanding of Arkansas law requiring that a contract include these essential elements: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations.Simmons v. Simmons,98 Ark.App. 12, 15, 249 S.W.3d 843, 846(2007).The Prices argue that the contract is void because it did not reflect a mutual agreement.In support of their argument, the Prices claim that the writing was not a contract because it did not include an interest rate, did not mention performing a survey, and did not mention the payment of taxes.They also argue that their use of future-tense language (“we will be selling” and “they will be buying”) and the phrase “[t]his is just a rough draft..incase something happens to the owner.Walter and Jerry Willbanks will be pertected” is proof that they did not manifest an intent to contract for the sale of the land.In response, the Willbankses testified that they believed they were buying the property and would receive title once they paid the $30,000 by virtue of their $300 monthly payments.

We believe that the trial court's resolution of the matter was both logical and consistent with the common principles of installment-land contracts.Our law does not favor the destruction of contracts because of uncertainty, and courts—when possible—are to construe a contract in a manner that gives effect to the reasonable intentions of the parties.Dziga v. Muradian Bus. Brokers, Inc.,28 Ark.App. 241, 245, 773 S.W.2d 106, 107(1989).Here, the precise language of the “Land Contract” includes the following substantial provisions: (1) the names of all parties involved, (2) the payment method, (3) the intent to sell the “front half” of the original [Ark.App. 5]tract to the Willbankses, (4) a detailed description of the fifteen acres to be sold, (5) the price per month and the total purchase amount to be paid by the Willbankses,²(6) a provision for breach and termination of the contract, and (7) the dated signatures of all the parties involved.There is no...