Van Dyke v. Glover

• Decision Date: 25 November 1996
• Docket Number: No. 95-1348,95-1348
• Citation: 934 S.W.2d 204,326 Ark. 736
• Parties: Jerry VAN DYKE and Shirley Van Dyke, Appellants, v. Dorsey D. GLOVER, Robert Ward, Nature Estates, Inc., Phinis Warnex, and Sparks Brothers Realty, Appellees,
• Court: Arkansas Supreme Court

Page 204

934 S.W.2d 204

326 Ark. 736

Jerry VAN DYKE and Shirley Van Dyke, Appellants, v. Dorsey D. GLOVER, Robert Ward, Nature Estates, Inc., Phinis Warnex, and Sparks Brothers Realty, Appellees,

No. 95-1348.

Supreme Court of Arkansas.

Nov. 25, 1996.

John Dewey Watson, Allison Graves, Little Rock, for Appellant.

David M. Glover, Mark Roberts, Malvern, George D. Ellis, Benton, for Appellee.

BROWN, Justice.

Appellants Jerry Van Dyke and Shirley Van Dyke appeal a dismissal of their complaint against appellees Dorsey D. Glover, Robert Ward, Nature Estates, Inc., Phinis Warnex, and Sparks Brothers Realty. They contend that the trial court erred in finding that they did not state facts upon which relief can be granted under Ark. R. Civ. P. 12(b)(6). We agree with the appellants, and we reverse the order of dismissal and remand the matter.

On May 26, 1995, the Van Dykes filed their complaint against Glover, Ward, Nature Estates, Warnex, and Sparks Brothers. The history of the dealings among the parties, according to the Van Dykes, is set out in the allegations of the complaint. They first alleged that Glover and Ward owned four tracts of land in Hot Spring County. The Van Dykes owned land near those tracts and approached Ward and Glover about purchasing the tracts. On or about June 20, 1994, Glover on behalf of himself and Ward hand-delivered an offer of sale to Shirley Van Dyke with a color-coded map of the four tracts. (The map was Exhibit A and the Glover offer was Exhibit B to the complaint.) Shirley Van Dyke then went to Glover's office on June 21, 1994, and orally accepted the terms of the written offer. Shirley Van Dyke also offered to make a down payment on the tract to be purchased and option payments on the three tracts to be optioned and to pay earnest money as well, but Glover told her that was not necessary at that time to consummate the contract because he did not want to receive payment until after the first of the year. The Van Dykes left for California with the belief that they had a contract, and Glover left for Europe. Shirley Van Dyke later began pursuing information on timber values on the tracts, water service, and the feasibility of constructing a lake.

The Van Dykes asserted in their complaint that Shirley's actions informed Nature Estates, Warnex, and Sparks Brothers of their contract with Glover and Ward and that Nature Estates, Warnex, and Sparks Brothers offered Ward and Glover a higher price for the land. The Van Dykes further assert that Nature Estates, Warnex, and Sparks Brothers were engaged in subdividing the property for mobile home/trailer sites, and they had entered into purchase agreements to sell some of the subdivided tracts. The Van Dykes sought (1) cancellation of the Glover/Ward contract with Nature Estates, Warnex, and Sparks Brothers as well as any contracts to third persons; (2) specific performance of their contract with Glover and Ward; (3) a preliminary injunction to prevent any further transfer or sale of the property by Nature Estates, Warnex, and Sparks Brothers; and (4) recovery from Nature Estates, Warnex, and Sparks Brothers for tortious interference with their contract.

The letter from Glover to Shirley Van Dyke was attached to the complaint as Exhibit B and reads:

The purpose of this letter is to set forth in writing for your convenience the terms Robert Ward and I discussed with you here in my office on Friday regarding a tract of land you are interested in purchasing, and to make a proposal to you regarding options on three additional tracts of land you have indicated that you and Jerry might be interested in purchasing.

I will hand you with this letter a copy of an ownership map with the various tracts of land marked with a different color for easy identification. The land you have expressed an interest in buying now is marked in pink and contains approximately 109 acres. At $675.00 per acre, the total purchase price on this tract will be $73,575.00. With a 20% down payment ($14,715.00) we would agree to finance the $58,860.00 balance of the purchase price for a period of five years with interest at 8% per annum, which would make your monthly payments approximately $1,200.00. Obviously, if you want to pay more down there would [be] less to finance and your payments would be reduced accordingly. You let us know what you are comfortable with and we will put the figures together for you.

The tracts you have indicated you would like an option to purchase are the area marked in blue on your map containing 77 acres, which we will refer to as Tract 1, the area marked in yellow containing 57 acres, which we will refer to as Tract 2 and the area marked in green containing 100 acres, which we will refer to as Tract 3. We value Tract 1 and 2 at $800.00 an acre and Tract 3 at $900.00 an acre. We feel that this land, by virtue of timber growth, etc., is increasing in value at the rate of 10% a year. We would grant you a two year option to purchase either or all option tracts of land in exchange for your payment of 5% of the current value as option money (all of which would be credited back against the purchase price if you elect to buy) and an amount equal to 10% per annum to your date of purchase if you elect to buy, which we feel will offset the growth factor and increased value of the property.

As an example, if you wanted to buy the 77 acre tract marked in blue, which we have referred to as Tract 1 today, the price at $800.00 per acre would be $61,600.00. If, instead of buying it today, you wanted a two year option to buy it, you would pay 5% of that value ($3,080.00) for that option with that amount to be credited against the purchase price if you elect to buy, otherwise to be forfeited. Using that same example, if you decided to go ahead and buy the land one year after the option date, you would pay the purchase price of $61,600.00, plus the 10% growth factor of $6,160.00 for a total of $67,760.00, from which would be deducted the $3,080.00 option money payment, which would result in a total purchase price of $64,680.00, if my math is correct.

We will go over all of this when you are here at the office again today, but I thought that Jerry might not come with you, and it would be beneficial to have something in writing to discuss with him.

The Van Dykes filed a notice of lis pendens against the four tracts.

On June 13, 1995, Glover and Ward moved to dismiss the complaint on grounds that the Glover letter did not comply with the statute of frauds--Ark. Code Ann. § 4-59-101(a)(4) (Repl.1996). Glover and Ward also argued that the complaint otherwise failed to state sufficient facts to satisfy the statute of frauds for an oral contract. Nature Estates, Warnex, and Sparks Brothers filed their separate answer and affirmatively pled that the complaint should be dismissed because the statute of frauds had not been satisfied. In addition, they filed a counterclaim for slander of title and interference with contractual relations and business expectancy.

On July 18, 1995, a hearing was held on the motion to dismiss. Counsel for the Van Dykes maintained that all of the essential elements of an agreement were contained in the Glover letter. At the conclusion of the hearing the trial court informed the parties that its letter opinion would be forthcoming after it had reviewed the law. In a letter dated July 21, 1995, the trial court advised the attorneys that it had decided to grant the motion to dismiss for failure to comply with the statute of frauds.

On August 21, 1995, the Van Dykes filed an amended and substituted complaint in which they added a fifth count for promissory estoppel or detrimental reliance against Glover and Ward. Also on August 21, 1995, the Van Dykes filed a motion for the trial court to reconsider its ruling to dismiss the original claims in their complaint. The order of dismissal had not yet been entered.

On September 5, 1995, a hearing was held on the motion for reconsideration and the amended complaint. On September 19, 1995, the trial court entered its order of dismissal. The trial court stated in its order that it had considered "the pleadings, the briefs, the arguments of counsel and the cases cited to the court" and specifically found that the Glover letter did not comply with the statute of frauds and, therefore, was not an enforceable contract:

The [C]ourt thinks the letter is an offer but the letter has options in it. The Court cannot find an acceptance because to the document on its face one cannot say, "I accept." There are too many options in there to just accept it. It takes a specific acceptance of option one, two or three. The Court thinks that could have been done. There were sufficient items there (sic) it could constitute an offer; but the Court finds no acceptance. Likewise for the above reasons, the court finds the amended and substituted complaint does not state facts upon which relief may be granted on the doctrine of detrimental reliance or promissory estoppel. Defendants' counterclaims are pending and are transferred to circuit court.

The trial court dismissed the Van Dykes' original complaint and their amended and substituted complaint and granted a Rule 54(b) certification for purposes of appeal because the counterclaim against the Van Dykes was still pending. See Ark. R. Civ. P. 54(b).

The Van Dykes urge on appeal that they did plead sufficient facts on which relief could be granted, including facts sufficient to satisfy the statute of frauds. In considering a motion to dismiss under Arkansas Rule of Civil Procedure 12(b)(6), the facts alleged in the complaint are treated as true and are viewed in the light most favorable to the plaintiff--in this case, the Van Dykes. Malone v. Trans-States Lines, Inc., 325 Ark. 383, 926 S.W.2d 659 (1996); Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). Though counsel for appellees contended at oral argument that the trial court considered matters...