{ "id": 6141759, "name": "ISON PROPERTIES, LLC v. Chris R. WOOD and Debbie C. Wood, Husband and Wife, d/b/a Greers Ferry Marine & ATV, LLC", "name_abbreviation": "Ison Properties, LLC v. Wood", "decision_date": "2004-03-31", "docket_number": "CA 03-501", "first_page": "443", "last_page": "450", "citations": [ { "type": "official", "cite": "85 Ark. App. 443" }, { "type": "parallel", "cite": "156 S.W.3d 742" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7\u00a7 16-55-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "333 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703840 ], "weight": 4, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/333/0324-01" ] }, { "cite": "348 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74153 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0148-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-60-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-58-125", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "261 Ark. 796", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678887 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "801" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/ark/261/0796-01" ] }, { "cite": "316 Ark. 297", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907839 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0297-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-60-116", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "259 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1619169 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/259/0038-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-60-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16-60-111", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "57 Ark. App. 25", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136596 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark-app/57/0025-01" ] }, { "cite": "83 Ark. App. 130", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138228 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/83/0130-01" ] } ], "analysis": { "cardinality": 621, "char_count": 12568, "ocr_confidence": 0.744, "pagerank": { "raw": 9.623523029526138e-08, "percentile": 0.5270096828039009 }, "sha256": "10903ed6f40867d28387c70e2b2ac07793b2518cb968dd8828ddd984baa8e9a2", "simhash": "1:9b4da5469144f1cc", "word_count": 2086 }, "last_updated": "2023-07-14T22:49:47.605982+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Bird, JJ., agree." ], "parties": [ "ISON PROPERTIES, LLC v. Chris R. WOOD and Debbie C. Wood, Husband and Wife, d/b/a Greers Ferry Marine & ATV, LLC" ], "opinions": [ { "text": "John B. Robbins, Judge.\nIson Properties, LLC, appeals from two rulings by the Cleburne County Circuit Court in this breach-of-contract action filed against it by appellees Chris Wood and Debbie Wood, d/b/a Greers Ferry Marine & ATV, LLC. After a jury trial, appellees recovered a judgment of $140,929.45 for appellant\u2019s failure to follow through with an agreement to purchase appellees\u2019 retail inventory of boats and recreational equipment. The three issues presented on appeal are whether the trial court erred in denying appellant\u2019s motion to dismiss for improper venue; whether it erred in striking appellant\u2019s affirmative defense of fraud; and whether it abused its discretion in refusing to amend the pleadings to conform to the evidence of fraud presented at trial. We affirm the trial court\u2019s decision in all respects.\nIn the fall of 2000, appellant entered into two agreements to buy appellees\u2019 boating and recreational vehicle business in Greers Ferry: one agreement concerned the purchase of appellees\u2019 real property, and the other dealt with the inventory. The agreement involved in this action is the inventory agreement dated November 9, 2000, wherein appellant agreed to purchase appellees\u2019 inventory of boats and other recreational vehicles, as described on a document labeled Schedule A that was attached to the contract. In paragraphs 3 and 4, the contract stated:\nBuyer shall take whatever steps are necessary to assume the outstanding indebtedness with the respective suppliers of the equipment as identified on Schedule A.... The assumption by Buyer of the outstanding indebtedness of the items described on Schedule A shall be the total consideration paid by Buyer to Sellers for the transfer of said property to Buyer from Sellers.\nSchedule A listed, by lender, appellees\u2019 inventory of boats, setting forth each one\u2019s year model, serial number, and the balance due each lender. Although the total balances due to Heber Springs State Bank, Transamerica, and Bombardier were listed on those pages, all of the current principal and interest payments due at that time were not set forth.\nAfter closing, Mr. Ison learned that, in order to transfer the outstanding indebtedness on the boats to him, the lenders required him to immediately pay the \u201ccurtailments,\u201d the amounts of principal that were then due. The total amount of curtailments due when the contract was signed was $57,892.42. Mr. Ison then refused to complete the purchase of the inventory, and appellees filed this action for breach of contract in Cleburne County. In response, appellant filed a motion to dismiss for improper venue, which was denied. In its answer, appellant asserted the affirmative defense of fraud, stating: \u201cThe Defendant affirmatively pleads that the Plaintiff committed acts of fraud in failing to disclose to the Defendant the amount of curtailments on the boat inventory.\u201d On the morning of trial, appellees filed a motion to strike appellant\u2019s defense of fraud on the ground that it was not stated with the particularity required by Ark. R. Civ. P. 9(b). The trial court granted this motion, over appellant\u2019s objection.\nAt the conclusion of the trial, appellant moved to amend the pleadings to conform to the proof of fraudulent inducement introduced at trial. The trial court denied this motion and refused to instruct the jury on the issue of fraud. The jury returned a verdict for appellees in the amount of $140,929.45. Appellant has appealed from the judgment entered on that verdict.\nIn its first point, appellant argues that the trial court erred in denying its motion to dismiss for improper venue. Whether venue is appropriate in a particular county is a matter of law. River Bar Farms, LLC v. Moore, 83 Ark. App. 130, 118 S.W.3d 145 (2003); Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark. App. 25, 940 S.W.2d 889 (1997). As explained below, venue was proper in Cleburne County for a number of reasons.\nAppellant argues that, based upon Ark. Code Ann. \u00a7 16-60-111(a) (1987), venue was proper only in Van Buren County, where its principal place of business is located. This statute provides: \u201cAn action on a debt, account, or note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.\u201d Appellant also contends that Ark. Code Ann. \u00a7 16-60-104 (1987) requires the dismissal of this action for improper venue. It states in relevant part: \u201cAn action, other than those in \u00a7\u00a7 16-60-101 \u2014 16-60-103, against a corporation created by the laws of this state may be brought in the county in which it is situated or has its principal office or place ofbusiness, or in which its chief officer resides.\u201d Appellant states that, in addition to its principal place of business being in Van Bur\u00e9n County, its chief officer, John Ison, resides there.\nAppellant, however, offered no proof about its principal place of business or the residence of its chief officer. When venue is questioned, there must be a determination on the facts; unless the pleadings on their face show that an action was commenced in the wrong county, a defendant objecting to the venue has the burden of proving the essential facts. Farmers Bank v. Fuqua Homes, Inc., 259 Ark. 38, 531 S.W.2d 23 (1976).\nAlso, because it is undisputed that Mr. Ison was served by the Cleburne County Sheriff in Cleburne County, Ark. Code Ann. \u00a7 16-60-116(a) (1987) permits venue in that county. That statute provides: \u201cEvery other action may be brought in any county in which the defendant, or one (1) of several defendants, resides or is summoned.\u201d In Fraser Brothers v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994), the supreme court stated that an action based upon the nonpayment of a debt or breach of contract must be brought in the county of the defendant\u2019s residence or where the defendant is summoned.\nArkansas Code Annotated section 16-58-125(a)(l) (1987) also applies because appellant admitted in paragraph one of its answer to the complaint that it operates a boating and recreational vehicle business in Cleburne County. This statute states: Arkansas Code Annotated section 16-58-125 supplements Ark. Code Ann. \u00a7 16-60-104. In American Savings & Loan Association v. Enfield, 261 Ark. 796, 551 S.W.2d 552 (1977), the supreme court explained:\nAny and all foreign and domestic corporations which keep or maintain in any of the counties of this state a branch office or other place ofbusiness shall be subject to suits in any of the courts in any of the counties where the corporation so keeps or maintains the office or place ofbusiness.\nIt does not seem to us that the language of this section could any more clearly state that venue in an action against a domestic corporation can be laid in any county where the corporation maintains a branch office and that service of summons from any court held in such a county upon the person in charge of that office is sufficient to give that court jurisdiction.\n261 Ark. at 801, 551 S.W.2d at 554.\nIn their treatise, Arkansas Civil Practice & Procedure \u00a7 6-6, at 99-100 (3d ed. 2002), Justice David Newbern and Professor John Watkins explain the effect of section 16-58-125 as follows:\nAnother statute [in addition to Section 16-60-104], not codified with the venue provisions, expands these venue options. Under Ark. Code Ann. \u00a7 16-58-125(a)(l), corporations that maintain branch offices or other places of business are subject to suit in any county where such facilities are located. This statute has been held to supplement Ark. Code Ann. \u00a7 16-60-104, as has a similarly worded venue statute, Ark. Code Ann. \u00a7 16-60-105, that applies to actions against a \u201cperson, firm, copartnership, or association.\u201d Consequently, a domestic corporation might well be subject to suit in several counties: where it is situated, where its principal office or place of business is located, where a branch office or other place of business is located, or where its chief officer resides.\nBecause appellant failed to produce any facts to support its venue argument, and because Ark. Code Ann. \u00a7\u00a7 16-58-125 and 16-60-116 support venue for this action in Cleburne County, we hold that the trial court was correct in denying appellant\u2019s motion to dismiss on the basis of venue.\nIn its second point, appellant argues that the trial court erred in granting appellees\u2019 motion to strike its defense of fraud from its answer because it was untimely. A trial court\u2019s decision regarding the striking of a pleading will not be reversed in the absence of an abuse of discretion. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).\nOn the morning of trial, appellees moved to strike appellant\u2019s affirmative defense of fraud on the ground that it was not stated with the required particularity. Appellant argues that appellees\u2019 motion was untimely because Ark. R. Civ. P. 12(f) required the motion to be made within twenty days after service of appellant\u2019s answer on appellees. It also contends that, under Ark. R. Civ. P. 6(c), the motion should have been served no later than twenty days before the trial. We disagree, because an objection of failure to state a legal defense to a claim may be made at the trial on the merits. Ark. R. Civ. P. 12(h)(2). We therefore reject appellant\u2019s argument on this issue.\nAppellant also contends that, at the conclusion of the trial, the trial court abused its discretion in denying its motion to amend the pleadings to conform to the evidence it produced of fraudulent inducement on the part of appellees. Appellant argues that, because it presented evidence of appellee\u2019s fraud without objection from appellees, appellees waived their objection to appellant\u2019s request to amend the pleadings to conform to the evidence.\nArkansas Rule of Civil Procedure 15 provides for liberal amendments to and supplementation of pleadings and does not require that the claim be pled in writing at the time the parties actually try the issues. Although pleadings are required so that each party will know the issues to be tried and be prepared to offer his proof, Rule 15(b) allows for the amendment of the pleadings to conform to the evidence introduced at trial. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Permitting the introduction of proof on an issue not raised in the pleadings constitutes an implied consent to trial on that issue. Id. We will not reverse a trial court\u2019s decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion. Id.\nAlthough Rule 15 permits an amendment to the pleadings when the parties have implicitly agreed to the introduction of certain evidence, we find no such agreement here. Appellees made their position on this issue clear by filing their motion to strike appellant\u2019s defense of fraud on the morning of trial. Furthermore, midway through the trial, at the close of appellees\u2019 case, the court announced that it was granting appellees\u2019 motion to strike the fraud defense from appellant\u2019s answer. Thus, the parties\u2019 fundamental disagreement on this matter and absence of implied consent could not have been more apparent at trial. Under the circumstances, we cannot say that the trial court abused its discretion in denying appellant\u2019s motion to amend the pleadings.\nAffirmed.\nPittman and Bird, JJ., agree.\nIn their treatise, Arkansas Civil Practice & Procedure \u00a7 6-1, at 25 (Supp. 2003), Justice David Newbern and Professor John Watkins note that the Civil Justice Reform Act, Act 649 of 2003, codified at Ark. Code Ann. \u00a7\u00a7 16-55-201 et seq., significantly altered this state\u2019s \u201cvenue landscape.\u201d They state that, although the focus of the act is tort reform, it contains venue provisions that apply, with certain exceptions, to \u201call civil actions\u201d accruing on or after March 25,2003. The act does not apply to this case because appellees\u2019 cause of action accrued over two years before that date.\nAppellant does not argue that the trial court was wrong in finding that its defense of fraud set forth in its answer lacked the necessary particularity.\nFraud is an affirmative defense that must be expressly pled in response to a complaint. Ark. R. Civ. P. 8(c). Arkansas Rule of Civil Procedure 9(b) requires that the circumstances constituting fraud be stated with particularity.", "type": "majority", "author": "John B. Robbins, Judge." } ], "attorneys": [ "The Blagg Law Firm, by: Brad A. Cazort, for appellant.", "Terry J. Lynn, for appellee." ], "corrections": "", "head_matter": "ISON PROPERTIES, LLC v. Chris R. WOOD and Debbie C. Wood, Husband and Wife, d/b/a Greers Ferry Marine & ATV, LLC\nCA 03-501\n156 S.W.3d 742\nCourt of Appeals of Arkansas Division IV\nOpinion delivered March 31, 2004\nThe Blagg Law Firm, by: Brad A. Cazort, for appellant.\nTerry J. Lynn, for appellee." }, "file_name": "0443-01", "first_page_order": 467, "last_page_order": 474 }