{ "id": 3033889, "name": "Deborah J. THOMAS v. Dale OLSON, Individually, Conny Olson, Individually, and Dale Olson and Conny Olson as Trustees of the Dale Olson and Conny Olson Family Living Trust, U/T/D May 18, 2000", "name_abbreviation": "Thomas v. Olson", "decision_date": "2005-12-15", "docket_number": "05-123", "first_page": "444", "last_page": "451", "citations": [ { "type": "official", "cite": "364 Ark. 444" }, { "type": "parallel", "cite": "220 S.W.3d 627" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "354 Ark. 584", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 36076 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/354/0584-01" ] }, { "cite": "349 Ark. 492", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513784 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0492-01" ] }, { "cite": "360 Ark. 465", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5462334 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/360/0465-01" ] }, { "cite": "Ark. Code Ann. \u00a7 4-88-113", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "pin_cites": [ { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "286 Ark. 113", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717871 ], "weight": 5, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0113-01" ] }, { "cite": "302 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884345 ], "weight": 4, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0175-01" ] }, { "cite": "286 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717670 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/286/0088-01" ] }, { "cite": "332 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377646 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0503-01" ] }, { "cite": "350 Ark. 254", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404494 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0254-01" ] }, { "cite": "336 Ark. 456", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51289 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0456-01" ] }, { "cite": "328 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50393 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "155" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0153-01" ] }, { "cite": "341 Ark. 673", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257738 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "684" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0673-01" ] }, { "cite": "323 Ark. 188", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445774 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0188-01" ] }, { "cite": "302 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884314 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0228-01" ] }, { "cite": "315 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910446 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0318-01" ] }, { "cite": "269 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712436 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0237-01" ] }, { "cite": "315 Ark. 178", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910535 ], "weight": 8, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/315/0178-01" ] }, { "cite": "319 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453577 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/319/0111-01" ] }, { "cite": "353 Ark. 730", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155530 ], "weight": 6, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0730-01" ] } ], "analysis": { "cardinality": 801, "char_count": 16483, "ocr_confidence": 0.745, "pagerank": { "raw": 2.939013896159419e-07, "percentile": 0.8479648813502254 }, "sha256": "4a4fb662f909276fc7ac2b59c3bd2191ff7a6a559f2988884ea34fea9ea8a473", "simhash": "1:b1ed057d3d05475e", "word_count": 2779 }, "last_updated": "2023-07-14T22:20:15.872106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Deborah J. THOMAS v. Dale OLSON, Individually, Conny Olson, Individually, and Dale Olson and Conny Olson as Trustees of the Dale Olson and Conny Olson Family Living Trust, U/T/D May 18, 2000" ], "opinions": [ { "text": "Betty C. Dickey, Justice.\nAppellant Deborah Thomas challenges the dismissal of her claims against appellees Dale and Conny Olson for breach of contract, deceit, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act. Ms. Thomas contends that the circuit court erred in (1) denying her motions for a directed verdict and judgment notwithstanding the verdict (JNOV) because there was no substantial evidence to show that the Olsons fully disclosed defects of their home due to movement of its foundation; (2) denying her motion for a new trial because the jury verdict was clearly against the preponderance of the evidence or was contrary to law; and (3) fading to give a proffered jury instruction for attorney\u2019s fees. We find no error and affirm.\nThe Olsons initially contracted to sell their Fort Smith home to the Norburys for $145,000, in September of 2000, and they provided owner financing to the Norburys. Shortly after moving in to the home, the Norburys noticed cracks in various places in the walls and floors as a result of movement in the home\u2019s foundation. They obtained two estimates for repairing the foundation, $31,000 from PowerLift, and $17,500 from Foundation Specialties for a partial fix. Instead of paying to repair the foundation, the Norburys decided to terminate the real estate contract by moving out of the home, sometime in February of 2002.\nAbout a month later, the Olsons relisted their home with a real estate agent, Karen Samuelson. Betty Hogue, a neighbor of the Olsons and a coworker of appellant, informed Ms. Thomas of the listing. Agent Samuelson showed the home to Ms. Thomas, who expressed interest in purchasing the home. Samuelson also gave Ms. Thomas a property disclosure on which the Olsons had checked \u201cYes\u201d to questions that indicated their home had experienced settling problems, causing defects in the structure. In addition, the Olsons stated in the disclosure that there \u201c[h]ave been some cracks in interior and exterior walls-due to foundation movement.\u201d Ms. Thomas was not informed about the previous estimates for repairing the home\u2019s foundation. Nevertheless, she was informed through her appraiser that the house was valued at $145,000. Ultimately, Ms. Thomas offered $105,000 for the home, which the Olsons accepted.\nSeveral months after Ms. Thomas moved into the home, she noticed a large exterior crack around the fireplace. Concerned that the fireplace would soon become detached from the home, she called PowerLift for an estimate to repair the crack and learned that PowerLift had given the Olsons an estimate several months earlier. Additionally, she called Foundation Specialties, who informed her that it had also prepared an estimate for the Olsons. Ms. Thomas asked the Olsons to rescind the contract, but they refused. She eventually paid Foundation Specialties $15,360 to partially fix the foundation. Ms. Thomas subsequently sued the Olsons for breach of contract, deceit, constructive fraud, and violations of the Arkansas Deceptive Trade Practices Act.\nAt trial, the Olsons presented evidence that Ms. Thomas had waived her rights to any claims arising out of the real estate contract. The real estate contract contained an \u201cas is\u201d clause, which specifically stated that the buyer would hold the seller harmless for any structural defects discovered after closing. Agent Samuelson testified that she had gone over the entire contract with Ms. Thomas, explaining her right to have the home inspected and advising her to do so, and telling her that if she failed to inspect the home, she would waive all rights to any future repairs of the home. Despite this advice, Ms. Thomas declined to have the home inspected.\nMs. Hogue testified that she informed Ms. Thomas that the home was being sold at a reduced price because it had foundation problems. When she learned that Ms. Thomas planned to sue the Olsons over foundation problems, Ms. Hogue said that she was surprised and asked, \u201cDebbie, why do you think you got the house for what you paid for it?\u201d Mr. Olson testified that the main reason for the reduced price was the foundation problem. Tim Bailey, a neighbor of the Olsons, testified that, when he challenged Mr. Olson because he thought that the $100,000 price range was \u201cway too low,\u201d Mr. Olson said that he was reducing the price due to foundation problems.\nMs. Thomas testified that, because of her work, she only viewed the property in the evening when it was dark. She stated that she observed cracks in the exterior of the home but that it was very hard to see them because there was no light and they were located behind bushes. She admitted that she was aware that one of the reasons for the reduced price was due to settlement problems. At the close of the trial, Ms. Thomas moved for a directed verdict, which was denied. The jury returned a verdict in favor of the Olsons on all claims. Ms. Thomas then filed a motion for a new trial or for JNOV, which was also denied. Ms. Thomas now appeals the circuit court\u2019s denial of these motions.\nMs. Thomas relies on both the real estate contract and owner property disclosure to support her five theories of liability against the Olsons. Paragraph 16(C) of the real estate contract states that the \u201c[s]eller will provide to Buyer a written Disclosure about the condition of the property which will contain information that is true and correct to the best of the Seller\u2019s knowledge.\u201d According to Ms. Thomas, the Olsons failed to disclose or fully disclose, to the best of their knowledge, known defects of the home as a result of movement in the foundation. Specifically, she maintains that had the Olsons disclosed the severity of the foundation problems, by divulging the previous estimates for repairing the foundation in the property disclosure, she would not have purchased the home.\nI. Motions for Directed Verdict and JNOV\nMs. Thomas first argues that the circuit court erred in denying her motions for directed verdict and JNOV. She contends that there was no substantial evidence to support the jury\u2019s verdict because the Olsons failed to inform her about the estimates to repair the foundation of the home, which they were contractually required to do. We decline to address the merits of the denial of both motions because the motion for a directed verdict was not supported by any specific grounds. Rule 50(a) of the Arkansas Rules of Civil Procedure requires that a party moving for a directed verdict state specific grounds in order to bring the issue to the trial court\u2019s attention. See Ark. R. Civ. Proc. 50(a) (Repl. 2005); Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003); Yam\u2019s Inc. v. Moore, 319 Ark. 111, 890 S.W.2d 246 (1994); Security Pacific Housing Services, Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993).\nCounsel for Ms. Thomas requested a directed verdict on two occasions. First, after defense counsel\u2019s final witness had been excused, plaintiffs counsel said, \u201cI would move for directed verdict at this time\u201d to which the trial judge responded, \u201c[w]e will take that up in just a second. I\u2019m going to send the jury out.\u201d Second, after excusing the jury, the following colloquy took place between the court and plaintiffs counsel:\nThe Court: Mr. Taylor, do you have a motion?\nMr. Taylor: Yes, your Honor, on behalf of the plaintiff we move for directed verdict at this time.\nThe Court: The Court is going to deny the motion of Plaintiff for directed verdict. The Court believes this is a fact question for the jury on all counts that are raised, and for the same reasons that the Court denied the motion for directed verdict filed by the defense.\nUnquestionably, neither of these requests for a directed verdict on Ms. Thomas\u2019 behalf were supported by specific grounds.\nIn her brief, Ms. Thomas cites to the record and states that \u201cshe made specific arguments as to the sufficiency of the proof that was made on her behalf.\u201d However, such arguments were made in response to defense counsel\u2019s request for a directed verdict on the contract claim. Again, Rule 50(a) requires the party moving for a directed verdict to state specific grounds for the motion. Therefore, a response to an opposing party\u2019s motion for a directed verdict is insufficient for purposes of satisfying Rule 50(a). Failure to comply with the requirements enumerated in Rule 50(a) is a sufficient basis for denial of a motion for directed verdict and for affirmance on appeal. See Friddle, 315 Ark. 178, 866 S.W.2d 375; Svestka v. First Nat\u2019l Bank in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980). Requiring specific grounds in a motion for directed verdict is especially necessary when a case involves multiple issues, as does the instant case. Id. For these reasons, we conclude that this issue was not preserved for our review.\nSimilarly, we decline to address the merits of the denial of Ms. Thomas\u2019 motion for JNOV. We have observed that a motion for a directed verdict is a condition precedent to moving for JNOV. Friddle, 315 Ark. 178, 866 S.W.2d 375; Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993); Willson Safety Prod. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d (1990). And, because a motion for JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence, it cannot assert a ground not included in the motion for a directed verdict. Friddle, 315 Ark. 178, 866 S.W.2d 375. We have already concluded that Ms. Thomas\u2019 motion for a directed verdict was not supported by specific grounds, and, thus, the merits of the denial were not preserved for our review. It follows that Ms. Thomas\u2019 motion forJNOV, which is essentially a renewal of the motion for a directed verdict, was also not preserved for our review.\nII. Motion for New Trial\nMs. Thomas next asserts that the circuit court erred in denying her motion for a new trial. The standard of review for the denial of a motion for new trial is whether the verdict was supported by substantial evidence. Tucker, 353 Ark. 730, 120 S.W.3d 61; Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996). Substantial evidence is defined as \u201cevidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.\u201d SEECO, Inc. v. Hales, 341 Ark. 673, 684, 22 S.W.3d 157, 164 (2000); Esry v. Carden, 328 Ark. 153, 155, 942 S.W.2d 846, 847 (1997). Additionally, in determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party receiving the judgment. Tucker, 353 Ark. 730, 120 S.W.3d 61; D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (1999).\nThis court has acknowledged that generally, a defense verdict will always be supported by substantial evidence, because the plaintiff has the burden of proof, and the jury is the sole judge of credibility of witnesses and the weight and value of the evidence. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002); Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998); Morton v. American Med. Int\u2019l, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985). In situations where the verdict is against the party who has the burden of proof and that party appeals the denial of a motion for a new trial, a literal application of the substantial evidence test would be untenable, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Weber v. Bailey, 302 Ark. 175, 787 S.W.2d 690 (1990); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985). Thus, it makes little sense for an appellant to insist that a reversal is required because the defendant\u2019s proof failed to meet the substantial evidence test. Id. In short, the plaintiff has failed to convince the jury, as fact-finder, of an essential element of proof. Weber, 302 Ark. 175, 787 S.W.2d 690; Schaeffer, 286 Ark. 113, 689 S.W.2d 537.\nIn the instant case, there is substantial evidence to support the jury\u2019s verdict. The jury could have believed that by disclosing that the home had experienced foundation problems that caused defects, the Olsons were not liable under any of the five claims against them. Furthermore, regardless of whether the jury believed that the Olsons disclosed, or fully disclosed, all that was required of them on the owner\u2019s property disclosure, the jury could have found that Ms. Thomas waived her rights under the terms of the real estate contract by purchasing the property \u201cas is\u201d and by failing to inspect. Even excluding the contract and owner\u2019s property disclosure, the jury could have found that Ms. Thomas had independent knowledge of the foundation problems. For example, she paid $105,000 for a home that appraised for $145,000, and she testified that she was aware that the reduced price was based in part on the foundation problems. Thomas simply failed to convince the jury that the Olsons were liable under any of the five theories alleged. In short, the jury was presented with five theories of liability, however, the jury determined that Ms. Thomas failed to meet her burden of proof on any of them. Thus, the jury\u2019s verdict was supported by substantial evidence, and the circuit court did not err in denying Ms. Thomas\u2019 motion for a new trial.\nIII. Jury Instructions\nFinally, Ms. Thomas asserts that because attorney\u2019s fees are an element to her damages under the Arkansas Deceptive Trade Practices Act, the circuit court erred in failing to provide a proffered jury instruction for attorney\u2019s fees. She asserted claims of liability under Ark. Code Ann. sections 4-88-107 and 4-88-108 of the Arkansas Deceptive Trade Practices Act. Section 4 \u2014 88\u2014113(f) of the Act provides that \u201c[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate, and reasonable attorney\u2019s fees.\u201d Ark. Code Ann. \u00a7 4-88-113(f) (Repl. 2005). She avers that attorney\u2019s fees are an element of compensable damages under section 4 \u2014 88\u2014113(f) even in the absence of recovery of actual damages. To support this notion, she turns to the language of the statute and contends that \u201c[t]hat is why the legislature placed the words \u2018if appropriate,\u2019 following \u2018actual damages.\u2019 \u201d\nA trial court\u2019s refusal to give a proffered jury instruction will not be reversed absent an abuse of discretion. FMC Corp., Inv. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005). In addition, when we are asked to examine statutory language, as in the present case, we have noted that we will give effect to the intent of the legislature. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. Furthermore, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Burnette v. State, 354 Ark. 584, 127 S.W.3d 479 (2003).\nAs previously indicated, Ark. Code Ann. section 4-88-113(f) provides that \u201c[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate, and reasonable attorney\u2019s fees.\u201d (Emphasis added.) The plain reading of the statute requires that an award for actual damages or attorney\u2019s fees is predicated on prevailing on the claim or claims asserted. The jury rejected Ms. Thomas\u2019 claims pursuant to Ark. Code Ann, sections 4-88-107 and 4-88-108, thereby denying her recovery of actual damages or attorney\u2019s fees. Consequently, because Ms. Thomas did not prove actual damages or injury, it is not necessary for us to consider whether attorney\u2019s fees are a part of an element of damages under .Ark. Code Ann. section 4-88-113(f). We conclude that the circuit court did not abuse its discretion for failing to give the proffered jury instruction for attorney\u2019s fees.\nAffirmed.", "type": "majority", "author": "Betty C. Dickey, Justice." } ], "attorneys": [ "Phillip Jack Taylor, for appellant.", "Gean, Gean & Gean, by: Roy Gean, III, for appellees." ], "corrections": "", "head_matter": "Deborah J. THOMAS v. Dale OLSON, Individually, Conny Olson, Individually, and Dale Olson and Conny Olson as Trustees of the Dale Olson and Conny Olson Family Living Trust, U/T/D May 18, 2000\n05-123\n220 S.W.3d 627\nSupreme Court of Arkansas\nOpinion delivered December 15, 2005\nPhillip Jack Taylor, for appellant.\nGean, Gean & Gean, by: Roy Gean, III, for appellees." }, "file_name": "0444-01", "first_page_order": 470, "last_page_order": 477 }