{ "id": 36025, "name": "Harold L. \"Bud\" WARD and Linda Ward v. James R. WILLIAMS", "name_abbreviation": "Ward v. Williams", "decision_date": "2003-09-25", "docket_number": "02-1380", "first_page": "168", "last_page": "187", "citations": [ { "type": "official", "cite": "354 Ark. 168" }, { "type": "parallel", "cite": "118 S.W.3d 513" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "352 Ark. 65", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1159686 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/352/0065-01" ] }, { "cite": "351 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158962 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "653" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ark/351/0637-01" ] }, { "cite": "305 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1916836 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/305/0566-01" ] }, { "cite": "347 Ark. 89", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683172 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "98" }, { "page": "434", "parenthetical": "emphasis added" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0089-01" ] }, { "cite": "347 Ark. 260", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683467 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/347/0260-01" ] }, { "cite": "345 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 939026 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0330-01" ] }, { "cite": "343 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 226494 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/343/0237-01" ] }, { "cite": "345 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 938989 ], "weight": 3, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark/345/0381-01" ] }, { "cite": "80 Ark. App. 69", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137187 ], "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "Ward II" }, { "parenthetical": "Ward II" } ], "opinion_index": 0, "case_paths": [ "/ark-app/80/0069-01" ] }, { "cite": "232 Ark. 411", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694105 ], "weight": 4, "year": 1960, "pin_cites": [ { "parenthetical": "Neely I" }, { "parenthetical": "Neely I" } ], "opinion_index": 1, "case_paths": [ "/ark/232/0411-01" ] }, { "cite": "234 Ark. 812", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688394 ], "weight": 6, "year": 1962, "pin_cites": [ { "page": "813", "parenthetical": "Neely II" }, { "page": "727", "parenthetical": "Neely II" }, { "parenthetical": "Neely II" }, { "parenthetical": "Neely II" }, { "page": "813-14", "parenthetical": "emphasis added" }, { "page": "727", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/ark/234/0812-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 2, "year": 1950, "opinion_index": 1, "case_paths": [ "/ark/217/0198-01" ] }, { "cite": "333 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 703789 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "403-04", "parenthetical": "emphasis in original" } ], "opinion_index": 1, "case_paths": [ "/ark/333/0400-01" ] }, { "cite": "328 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50407 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/328/0001-01" ] } ], "analysis": { "cardinality": 1047, "char_count": 35720, "ocr_confidence": 0.742, "pagerank": { "raw": 4.225916231111377e-07, "percentile": 0.9141357276041963 }, "sha256": "e5582e91a9a45946d4ecdddf3b10af044e63d0c32b3080c28d75a5002ab8871b", "simhash": "1:4bf66efa7585f77d", "word_count": 6067 }, "last_updated": "2023-07-14T15:05:30.600361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Imber, J., dissents." ], "parties": [ "Harold L. \u201cBud\u201d WARD and Linda Ward v. James R. WILLIAMS" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nThe appellants, Harold L. \u201cBud\u201d Ward and Linda Ward (\u201cWards\u201d), appeal from a judgment in favor of the appellee, James R. Williams. At issue is an alleged oral contract for the sale of land located in Bryant. The Wards assert three points on appeal: (1) that the circuit court abdicated its fact-finding role by relying on findings made by the Court of Appeals in a previous appeal; (2) that the circuit court'erred in failing to consider whether there had been a \u201cmeeting of the minds\u201d between the parties; and (3) that there was no clear and convincing evidence of the essential terms of the contract. We disagree with the Wards\u2019 arguments and affirm the circuit court.\nIn November 1997, Williams filed suit against Bud Ward and Linda Ward, his wife, alleging that the Wards had entered into an oral agreement with Williams whereby Williams would purchase three tracts of land in Bryant from Bud Ward. Williams stated that the terms of the agreement included a $900,000 purchase price consisting of a $300,000 down payment, payable in cash and merchandise, and a balance of $600,000 payable at eight percent interest over twenty years. The complaint further asserted that Williams had completed the payment of the $300,000 down payment as of April 30, 1997, and had also paid monthly installments on the balance of the purchase price from May 21, 1994, through September 1997. Williams claimed that the oral contract at issue was removed from the statute of frauds due to his possession and control of the land, his substantial improvements to the land, and his substantial partial payment of the purchase price.\nOn January 25, 1999, a bench trial was held before the circuit court at which Williams testified that he and Bud Ward agreed to the following terms, including the fact that the $300,000 down payment was to be paid in cash and merchandise:\nOur original agreement, before we amended it in November, was a $900,000 purchase price with a $300,000 down payment, and a $600,000 note to be amortized over a course of 20 years at eight percent. The $300,000 was to be paid in the manner in which I described up front, $25,000 cash, 25,000 in diamonds, 25,000 dollar car and 25,000 in general merchandise, with the other 200,000 to be paid in merchandise and cash within the two years. Subsequently, upon our meeting, our agreement in November of 94, we decided that I was to finish paying him in cash and because of the amount of cash that I was to get an additional year to pay the down payment, which would have extended that to three years.\nWilliams also testified that his possession of the property and dealing with tenants was part of the agreement, as. well as repairing the property, insuring it, and paying any utilities due. Williams explained that although he had written \u201clease\u201d in the memo portion of many checks to Bud Ward, he did so only because Ward asked him to do that due to problems with his ex-wife. He stated that at all times, he and Ward discussed the business transaction as a sale of the land, not as a lease. Finally, Williams testified that although he was presented three separate draft agreements by Ward regarding the property, he did not sign any of them because they did not reflect the terms of the agreement that they had reached.\nAt the close of Williams\u2019s case, the Wards motioned the court to dismiss the case with prejudice. The circuit court granted the Wards\u2019 motion and stated in its ruling:\nThe problem ... is that in order for me to require someone to specifically perform on a contract, I have to have a contract. Whether it\u2019s in writing or oral, there\u2019s got to be a contract. The essence of any contract, as you know, as well as I do, is there\u2019s got to be a meeting of the minds, and there never has been. Your client\u2019s own testimony, \u201cIf we could have ever gotten a contract that we could have agreed upon and signed.\u201d There simply is no contract. For the record, to the extent that it might appear there was one, and there was none, there was insufficient partial performance that would remove the case from the statute of frauds. But the basis of the Court\u2019s ruling is, there is no contract and never was. The case is dismissed without prejudice. . . .\nOn January 26, 1999, an order was entered to that effect.\nThe matter was appealed by Williams to the Court of Appeals and the Court of Appeals reversed and remanded the case in an unpublished opinion. See Williams v. Ward, CA99-502 (Ark. App. Feb. 23, 2000) (Ward 1). The Court of Appeals held that the circuit court\u2019s dismissal amounted to a directed verdict. The Court of Appeals noted that the phrase \u201cmeeting of the minds\u201d had fallen into disfavor but determined that the evidence demonstrated that the \u201ctransaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that [Williams] established, by clear and convincing evidence, that an agreement was reached.\u201d Ward I, supra. The Court of Appeals also said that Williams had \u201cestablished the property\u2019s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract.\u201d Ward I, supra. Regarding removal of the oral contract from the statute of frauds, the Court of Appeals concluded that because Williams paid a substantial amount of money to Bud Ward, made improvements and repairs to the property, and secured tenants for the property, from whom he collected rent, Williams\u2019s actions were more than sufficient part performance to remove the oral contract from the statute of frauds. See Ward I, supra. The Court of Appeals remanded the case to the circuit court for further proceedings.\nOn remand, the circuit court held a second bench trial on March 14, 2001, at which the court began where it had ended following the first bench trial and allowed the Wards to present their case in response to Williams\u2019s case. Bud Ward testified that on March 25, 1994, he met with Williams, who offered him $900,000 for his land. Ward stated that Williams told him that because he could not afford to buy the land at that time, he wanted to lease it for twelve months and would begin paying a down payment at the same time. Ward also claimed that Williams told him that if he changed his mind and decided not to buy the land, he would forfeit any money paid toward the down payment. Ward insisted that he and Williams agreed that Ward \u201cwould get a written contract.\u201d Ward testified that over time he received cash, check payments, and merchandise from Williams. Ward contended that at all times he told Mr. Williams that \u201c[t]his price is good for twelve months only.\u201d\nAt the close of the Wards\u2019 case, counsel for both parties made closing arguments. Following questions posed from the circuit court to both parties, the court took the matter under advisement. On May 23, 2001, the circuit court issued a letter opinion, which read in part:\nI have reviewed the proof from the hearings on January 25, 1998, and March 14, 2001, in the above referenced case as well as the plaintiffs Pre-Trial and Post Trial Briefs, the defendants\u2019 Post Trial Brief and the Opinion of the Arkansas Court of Appeals dated February 23, 2000. The Court of Appeals found that the plaintiff\u2019s proof \u201cdemonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached\u201d.\nThe question then is whether the defendants rebutted that proof sufficiently to conclude otherwise. The answer is no. Contrary to defendants\u2019 argument that the terms of the contract are not definite, the Opinion is very clear: \u201cAppellant established the property\u2019s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract\u201d. In fact, all of the defendants\u2019 contentions are contrary to the Court of Appeals\u2019 findings.\nClearly, in light of the proof and the Opinion, the plaintiff should be given full credit for the $550,000.00 sale of the tract to Buford Blackwell. The contract price is paid in full, and the plaintiff is entitled to conveyance of the property by warranty deed.\nIn its judgment entered July 17, 2001, the circuit court made the following findings:\n2. In or about May 1994, the parties entered into an oral contract for plaintiff\u2019s purchase of the above real property, whereby plaintiff agreed to pay $300,000.00 as a down payment (in cash and merchandise) and $600,000.00 amortized over 20 years at 8 percent interest. \u25a0\n3. After the oral agreement was reached, plaintiff paid substantial money to defendants, made improvements and repairs, secured tenants, collected rents and took possession of the property. Therefore, same constitutes part performance so as to remove the contract from the statute of frauds.\n4. As of on or about March 20,1998, defendants had received more than full payment for the property; specifically, $921,008.00. Specifically, such payment was in the form of a down-payment of $315,000.00, proceeds from the sale of tract 1 to Buford Blackwell in the amount of $550,000.00 (with the consent of the parties hereto and with a portion of such proceeds satisfying a $534,000.00 mortgage of defendants with Metropolitan National Bank), reduction in the principal debt by $46,518.00 (by virtue of 40 monthly payments of $5,018.64 each) and additional reduction in principal of $9,490.00 (from monthly rental payments defendant received from Blackwell from September 1997 through the closing of sale of tract l.in March 1998).\n5. Despite full performance by plaintiff and defendants\u2019 receipt of more than the contract price, defendants are in breach of said contract because they have failed to convey title to said property by warranty deed, despite demand therefor.\nThe court found that specific performance was the appropriate remedy and ordered the Wards to convey title to the two remaining tracts ofland to Williams immediately in fee simple absolute. A stay of that judgment was ordered by the circuit court provided that a supersedeas bond was posted. The bond was not posted in timely fashion, and the circuit court entered a second order vesting title to the disputed land in Williams in fee simple absolute.\nThe Wards appealed to the Court of Appeals, which affirmed the circuit court. See Ward v. Williams, 80 Ark. App. 69, 91 S.W.3d 102 (2002) (Ward II). The Wards then petitioned this court for review of the case, which we granted. When this court grants a petition for review following a Court of Appeals decision, we consider the matter as if the appeal had been originally filed in this court. See, e.g., BPS, Inc. v. Parker, 345 Ark. 381, 47 S.W.3d 858 (2001).\nI. Abdication as Factfinder\nThe Wards claim as their first point that the'circuit court erred by abdicating its role as the finder of fact when it deferred to obiter dictum in Ward I, and, thus, failed to decide the matter on the proof presented at trial. In support of this claim, the Wards point to the circuit court\u2019s statements in its letter opinion and contend that the statements clearly demonstrate that the circuit court adopted the findings made by the Court of Appeals in Ward I.\nWilliams responds that although the Court of Appeals may have overstepped its bounds by holding that there was an enforceable contract between the parties, the circuit court, on remand, permitted the Wards to put on their case in the second trial. The circuit court then reviewed all of the proof from both trials. Williams claims in his brief on appeal that the Wards\u2019 evidence \u201cconfirmed that there was a contract for sale, not a lease, and that they had received more than the contract price.\u201d Williams further urges that the circuit court only considered the Court of Appeals\u2019 opinion as shifting the burden of persuasion to Ward and that both the circuit court\u2019s letter opinion and judgment demonstrate that the judge considered all the evidence.\nThis court has made it clear that it is not bound by any conclusion stated as obiter dictum. See Burnette v. Perkins & Assocs., 343 Ark. 237, 33 S.W.3d 145 (2000). We have further held that while a decision will not be disturbed because it is law of the case, we are not bound by a conclusion stated as obiter dictum, even if couched in terms that imply the court reached a conclusion on a matter. See Clemmons v. Office of Child Support Enfcm\u2019t, 345 Ark. 330, 47 S.W.3d 227 (2001). Where discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is obiter dictum. See id.\nIn the instant case, the Court of Appeals made the following statements in its unpublished opinion of February 23, 2000, regarding whether Williams had proven the making of an oral contract for the sale of land by clear and convincing evidence:\nThe evidence demonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached. Appellant established the property\u2019s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract. In our view, appellant\u2019s actions in securing tenants, making repairs and improvements to the property, and securing insurance on it, along with the substantial amount of money he paid appellee, overwhelmingly demonstrate that both parties viewed this transaction as a sale. One cannot reasonably conclude that appellant\u2019s actions were those of a tenant.\n... As discussed above, appellant paid a substantial amount of money to appellee, made improvements and repairs, and secured tenants, from whom he collected rent, for the property. Appellant\u2019s actions were more than sufficient to remove the contract from the statute of frauds.\nWard I, slip op. at 4-6.\nThere is no doubt in our minds that these \u201cfindings\u201d by the Court of Appeals are obiter dictum and were not binding on the circuit court. It is further radiantly clear that appellate courts do not make findings of fact but rather review findings of fact of the circuit court to determine whether they are clearly erroneous. See Ark. R. Civ. P. 52(a). In deciding whether the grant of a motion for directed verdict was appropriate, appellate courts review whether there was substantial evidence to support the circuit court\u2019s decision. See, e.g., Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 61 S.W.3d 835 (2001).\nBut our inquiry does not end there. The question is whether the circuit court deferred to or impermissibly relied on the obiter dictum of the Court of Appeals and, thereby, failed to satisfy its role as factfinder. We think not. Though the Wards correctly note that the circuit court did refer to the Court of Appeals opinion in Ward I in its letter opinion, we are persuaded by the circuit court\u2019s statement about the scope of its review. The court said:\nI have reviewed the proof from the hearings on January 25, 1998, and March 14, 2001, in the above referenced case as well as the plaintiffs Pre-Trial and Post Trial Briefs, the defendants\u2019 Post Trial Brief and the Opinion of the Arkansas Court of Appeals dated February 23, 2000.\nWithout question, the circuit court did an independent review of the evidence.\nWe are further influenced by the fact that the circuit court engaged in extensive questioning of counsel for the parties at the second bench trial, following counsels\u2019 closing arguments. In that colloquy, the judge delved into the terms of the contract but also alluded to the fact that he was going to read the transcript of the original hearing in which Williams presented his case and disregard any argument not supported by evidence:\nT he Court: I need to go back and read the Court of Appeals opinion. What was your recollection of the Court of Appeals\u2019 opinion with respect to their reading of the case? As I remember, they said the proof was that there was an enforceable contract.\nCounsel for Williams: I think they said that.\nCounsel for Ward: At our last hearing we said that a fair reading of that is that the plaintiff made a prima facie case with respect to\u2014\nThe Court: An enforceable contract.\nCounsel for Ward: An enforceable contract.\nThe Court: If that\u2019s the case, then it seems to me the burden of proof is on you based on what they said.\nCounsel for Ward: Burden of persuasion.\nThe Court: Okay. To change that. What I heard here today that I can say to the Court of Appeals: \u201cThis is why it\u2019s not what you thought it was.\u201d\nCounsel for Ward: I don\u2019t think I can tell you with specificity what the terms of this contract were.\nThe Court: I\u2019m not too sure but what \u2014 that was not my position before the Court of Appeals told me I erred.\nThe Court: The truth is the Court of Appeals said there was enough there for a contract regardless of what problems we may have with it, they have said, \u201cThere is a contract. It\u2019s enforceable.\u201d At least that\u2019s the way I read it.\nCounsel for Ward: There\u2019s a prima facie case.\nThe Court: Which in my mind means it\u2019s not the burden of proof, it\u2019s the burden of persuasion shifts to you and I\u2019m asking you what is it that I can rely on to tell me why there is not.\nThe Court: I\u2019m going to go back and read the original hearing and I\u2019ll disregard any argument that is not supported by the evidence.\nThe judgment clearly and specifically makes findings of fact, as already noted in this opinion, without reference to the Court of Appeals opinion in Ward I. We hold that the circuit court did not abdicate its role as factfinder in this case.\nThe dissent interprets what the circuit court did differently. We, however, take the circuit court at its word. The court in its colloquy with counsel at the end of the second trial stated it would go back and reread the original hearing and disregard any argument not supported by evidence. In its letter opinion, the circuit court confirmed it had \u201creviewed the proof\u2019 from both trials. And then in its judgment, the circuit court made its findings based on that proof and without reference to the court of appeals\u2019 decision in Ward I. Again, we conclude that the circuit court weighed the proof from both trials and made its decision accordingly.\nII. Meeting of the Minds\nFor their second point, the Wards argue that the Court of Appeals\u2019 statement in Ward I that the phrase \u201cmeeting of the minds\u201d had fallen out of favor was error due to the fact that this court recently used the term in Williamson v. Sanofi Winthrop Pharmaceutical, Inc., 347 Ark. 89, 60 S.W.3d 428 (2001). Thus, the Wards maintain, Ward I conflicts with our Williamson decision.\nWilliams responds that the Wards\u2019 argument \u201cis the classic \u2018distinction without a difference.\u2019 \u201d He contends that there is no meaningful difference between \u201c[a] meeting of the minds as to all terms, using objective indicators,\u201d which was the test cited in our Williamson decision and \u201cobjective manifestations of mutual assent,\u201d which was the test used by the Court of Appeals in Ward I.\nAs already stated in this opinion, this court, following the grant of a petition for review, reviews what occurred in the circuit court for error and not the opinion of the Court of Appeals. See BPS, Inc. v. Parker, supra. Bearing this standard in mind, we turn to the appropriate test for determining agreement to a contract by the parties. In Williamson, we said \u201cit is well settled that in order to make a contract there must be a meeting of the minds on all terms, using objective indicators.\u201d Williamson, 347 Ark. at 98, 60 S.W.3d at 434 (emphasis added). It is clear that this court employs an objective test for determining mutual assent. Indeed, this court made it clear more than a decade ago that though the phrase \u201cmeeting of the minds\u201d may have been used in our decisions, we meant objective indicators of agreement and not subjective opinions. See Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). It is manifest from the circuit court\u2019s judgment that that court found objective indicators of the parties\u2019 assent to contract by virtue of the performance of its terms. There was no error, in this regard.\nIII. Clear and Convincing Evidence\nFor the Wards\u2019 third point, they contend that the Court of Appeals erred in holding that there was clear and convincing evidence that a contract existed. They state that the proof by both parties varied greatly as to the terms of the agreement. They contend that the only objective evidence presented were the twenty-six checks written by Williams to Ward which stated \u201clease\u201d in the memorandum field. Based on that, the Wards maintain that it is difficult to discern how a factfinder could find clear and convincing evidence in Williams\u2019s favor.\nIn Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., supra, this court set forth the essential elements of a contract: (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. We also said that we will keep in mind the following two principles when determining whether a contract has been entered into: \u201c(1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators.\u201d Williamson v. Sanofi Pharmaceuticals, Inc., 347 Ark. at 98, 60 S.W.3d at 434. Clear and convincing evidence has been defined by this court as \u201cthat evidence which produces a firm conviction in the factfinder that the allegation at issue is true.\u201d Carter v. Four Seasons Funding Corp., 351 Ark. 637, 653, 97 S.W.3d 387, 395 (2003).\nThe standard of review for bench trials is whether the circuit court\u2019s findings are clearly erroneous. See Ark. R. Civ. P. 52(a); Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). The circuit court found in its judgment that Williams had fully performed the oral contract and that the Wards had received more than the purchase price agreed to for the land. The manner of payment and other performance is specifically spelled out in the judgment. There was disagreement between the parties in their testimony as to why the term \u201clease\u201d was written in the memorandum field of many monthly checks. Disputed facts and determinations of credibility, however, are within the province of the factfinder to resolve. See Chavers v. Epsco Inc., supra. We cannot say that the circuit court clearly erred in its decision that an oral contract had been established.\nIV Mootness\nAppellee Williams advances the argument in his Supplemental Brief Upon Review that the land in question has already been deeded to him due to the Wards\u2019 failure to post a supersedeas bond and, thus, this appeal is moot. Williams further notes that the Wards did not appeal from the second order vesting title to. the land in him. This means, he contends, that the matter is over and done with, and the pending appeal is not viable.\nWe disagree. The judgment the Wards appealed from ordered that they convey the land to Williams, as he was entitled to specific performance of the oral contract. This was a final order. It is true that a temporary stay was later lifted due to the Wards\u2019 failure to post a supersedeas bond and title was vested in Williams. Nevertheless, we do not believe that the absence of a supersedeas bond and the granting of the land to Williams as part and parcel to execution on a judgment nullifies an appeal from that underlying judgment. Confirming our belief is the fact that Williams cites us to no authority to support his contention. Accordingly, we decline to hold this appeal is moot on the ground proposed by the appellee.\nAffirmed.\nImber, J., dissents.\nThe complaint also named Metropolitan National Bank and Buford Blackwell as parties, but they are no longer parties for purposes of this appeal.\nWilliams also presented testimony from Jim Delgado, Senior Vice President at Metropolitan National Bank; Buford Blackwell, who leased and later purchased a portion of the property at issue during the course of this litigation; and Elizabeth Burrow, Mr.Williams\u2019s fianc\u00e9e.", "type": "majority", "author": "Robert L. Brown, Justice." }, { "text": "Annabelle Clinton Imber, Justice,\ndissenting. I must dissent because I believe that the trial court in this case impermissibly deferred to the Court of Appeals\u2019 erroneous language, thereby abdicating its role as factfinder. In order to fully understand how the error in this case occurred, it is necessary to go back to the language in the Court of Appeals\u2019 unpublished opinion in Ward I, in which the Court of Appeals incorrectly made specific findings:\nThe evidence demonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached. Appellant established the property\u2019s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract. In our view, appellant\u2019s actions in securing tenants, making repairs and improvements to the property, and securing insurance on it, along with the substantial amount of money he paid appellee, overwhelmingly demonstrate that both parties viewed this transaction as a sale. One cannot reasonably conclude that appellant\u2019s actions were those of a tenant.\nWard I, slip op. at 4-5 (emphasis added).\nWhile it is true that a plaintiff must establish an oral contract by clear and convincing evidence, that standard of proof is utilized by the trial court when deciding a case on its merits after hearing evidence from both sides. See Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). In Ward I, the appeal was from a Rule 50(a) dismissal after hearing only the plaintiffs evidence. In Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998), we reiterated the trial court\u2019s duty under such circumstances:\n... In a long line of cases, beginning with Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), we have held that a chancellor\u2019s duty in the circumstances presented here is to review the defense motion for dismissal at the conclusion of the plaintiffs\u2019 case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury.... Rule 50(a) and [its precursor statute] permit the granting of a dismissal only when the plaintiffs evidence is insufficient to go forward, i.e., to constitute a prima fade case for relief.\nId. at 403. We then went on to quote from Neely v. Jones, 234 Ark. 812, 813, 354 S.W.2d 726, 727 (1962) (Neely II):\n. . . [W]e have consistently held that a [grant of a motion to dismiss under Rule 50(a)] should be sustained only if that proof, viewed in its most favorable light, would present no question of fact for a jury if the case were being tried at law. In such a situation the chancellor does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence, [citation omitted].\nSwink v. Giffin, 333 Ark. at 403-04 (emphasis in original).\nThe majority correctly states that appellate courts do not make findings of fact but rather review findings of fact of the circuit court to determine whether they are clearly erroneous. See Ark. R. Civ. P. 52(a) (2003). Thus, the majority holds that the statements by the Court of Appeals were obiter dictum and were not binding on the circuit court. However, the Court of Appeals overstepped its bounds by finding that there was an enforceable contract between the parties.\nThe Court of Appeals should have held that a prima facie case had been made \u2014 a decision that would have bound the trial court to nothing other than allowing the trial to go forward. Instead, the Court of Appeals held that the plaintiff-appellant had established by clear and convincing evidence not only the agreement, but the terms of the agreement \u2014 purchase price, amount of down payment and manner in which it would be satisfied, amount of monthly payments, and the term of the contract. In fact, the Court of Appeals held that the appellant\u2019s evidence overwhelmingly demonstrated that both parties viewed the transaction as a sale, even though it did so without benefit of the other party\u2019s evidence. So, instead of stating that a prima facie case was made, the Court of Appeals found that an oral contract existed.\nThe majority holds that Ward I did not bind the trial court on remand, and that the trial court did not impermissibly abdicate its responsibility to weigh the plaintiffs evidence against the defendant\u2019s evidence in making its decision. The key to the trial court\u2019s decision is found in both the colloquy that is quoted by the majority and the trial court\u2019s letter opinion dated May 23, 2001. Referring to the colloquy, the trial court on remand apparently believed the Court of Appeals\u2019 finding of an enforceable contract was binding, and the trial court, far from weighing the plaintiffs evidence against the defendant\u2019s evidence, believed the plaintiffs evidence had already established that a contract existed unless the defendant could refute the existence of the contract:\nThe Court: The truth is the Court ofAppeals said there was enough there for a contract regardless of what problems we may have with it, they have said, \u201cThere is a contract. It\u2019s enforceable.\u201d At least that\u2019s the way I.read it.\nDefense Counsel: There\u2019s a prima facie case.\nThe Court: Which in my mind means it\u2019s not the burden of proof, it\u2019s the burden of persuasion shifts to you and I\u2019m asking you what it is that I can rely on to tell me why there is not [a contract].\nAt the end of the colloquy, the trial court stated, \u201cI\u2019m going to go back and read the original hearing and I\u2019ll disregard any argument that is not supported by the evidence.\u201d This, combined with the fact that the Judgment did not mention Ward I, convinces the majority that the trial court went back over all the evidence and, disregarding the Court of Appeals\u2019 opinion, gave the plaintiffs evidence only the weight he should have properly given it. I am not persuaded.\nThe trial court here made the same mistake that was made by the appellants in the similar case of Neely v. Jones, 234 Ark. 812, 354 S.W.2d 726 (1962) (Neely II), which was cited in Swink, supra. In Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872 (1960) (Neely I), the trial court had sustained a demurrer to the plaintiffs\u2019 evidence (the pre-Rules equivalent of a Rule 50(a) dismissal). The plaintiffs appealed and we reversed and remanded, holding that the plaintiffs had raised a question of fact as to the issue in question. Id. On remand, the trial court heard the defendants\u2019 evidence, and then found for the defendants. The plaintiffs again appealed, this time asserting that our holding in Neely I was \u201claw of the case\u201d establishing as a fact the issue in question. Id. We affirmed the trial court, explaining that the same evidence that can establish a prima facie case may not be enough to establish a claim on its merits:\n... [OJur decision on the first appeal meant only that if the case had been heard at law upon the plaintiffs\u2019 evidence it would have been error to direct a verdict for the defendants.\nUpon remand the defendants eventually rested their case, and the cause was submitted upon the merits. Then, for the first time, it was proper for the chancellor to weigh the evidence and determine where its preponderance by. He was not obliged to find for the plaintiffs, any more than a jury would have been if the case had been retried at law after having been reversed for the trial court\u2019s error in directing a verdict for the defendants. Thus our decision upon the first appeal did not preclude the chancellor from finding, even upon the original proof alone, that the plaintiffs had not proved their case by a preponderance of the evidence.\nNeely v. Jones, 234 Ark. 812, 813-14; 354 S.W.2d 726, 727 (1962)(emphasis added).\nThe colloquy shows that the trial court believed it had to find the plaintiffs had proved their case on their original proof alone unless the defendants could somehow rebut that proof, but this belief is contrary to our holding in Neely II. Far from weighing the evidence for the first time after the close of the defendants\u2019 case, as required by Neely II, the trial court\u2019s memorandum letter dated May 23, 2001-, shows that the Court of Appeals\u2019 \u201cfinding\u201d was given deference and that the trial court clearly weighed the defendants\u2019 evidence against that opinion, instead of properly weighing it against the plaintiffs evidence:\n. . . The Court of Appeals found that the plaintiffs proof, \u201cdemonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached.\u201d\nThe question then is whether the defendants rebutted that proof sufficiently to conclude otherwise. The answer is no. Contrary to defendants\u2019 argument that the terms of the contract are not definite, the Opinion is very clear: \u201cAppellant established the property\u2019s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract.\u201d In fact, all of the defendants\u2019 contentions are contrary to the Court of Appeals findings ... [Emphasis added.]\nWhile the judgment does not mention the Court of Appeals\u2019 opinion, it is clear from the opinion letter that the trial court arrived at its decision by weighing the defendants\u2019 evidence against the Court of Appeals\u2019 \u201cfindings\u201d rather than weighing it against the plaintiff s proof. First, the trial court required the defendants to \u201crebut\u201d the plaintiffs proof, indicating that the trial court impermissibly shifted the burden of persuasion and gave the plaintiffs proof a presumption that had to be overcome by the defendants. There is no doubt that the trial court arrived at this presumption because it read the Court of Appeals\u2019 \u201cfinding\u201d as a presumption that the plaintiff had established the oral contract, rather than a prima facie case raising a question of fact as to whether or not an oral contract existed. Next, at no time in the opinion letter does the trial court claim to have weighed the defendants\u2019 proof against the plaintiff s proof. Instead, the opinion letter shows that the comparisons made were between the defendants\u2019 argument and \u201cthe Opinion,\u201d and between the defendants\u2019 contentions and \u201cthe Court of Appeals findings.\u201d\nThe majority holds that, because the judgment specifically makes findings of fact without reference to the Court of Appeals\u2019 opinion, the trial court did not abdicate its role as factfinder. Yet, the majority ignores the statements in the opinion letter that the trial court arrived at its decision by weighing the defendant\u2019s evidence against the Court of Appeals\u2019 opinion. In my view, the trial court abdicated its role as factfinder. Accordingly, I must respectfully dissent.", "type": "dissent", "author": "Annabelle Clinton Imber, Justice," } ], "attorneys": [ "Cearley Law Firm, P.A., by: Robert M. Cearley,Jr.; and McWilliams & Turner, P.A., by: MatthewJ. McWilliams, for appellants.", "Barber, McCaskill, Jones & Hale, P.A., by: MichaelJ. Emerson, for appellee." ], "corrections": "", "head_matter": "Harold L. \u201cBud\u201d WARD and Linda Ward v. James R. WILLIAMS\n02-1380\n118 S.W.3d 513\nSupreme Court of Arkansas\nOpinion delivered September 25, 2003\nCearley Law Firm, P.A., by: Robert M. Cearley,Jr.; and McWilliams & Turner, P.A., by: MatthewJ. McWilliams, for appellants.\nBarber, McCaskill, Jones & Hale, P.A., by: MichaelJ. Emerson, for appellee." }, "file_name": "0168-01", "first_page_order": 194, "last_page_order": 213 }