*1 because the Springs Road loans her home.
were secured about a constructive bring
To
trust, promise falsely giv oral must be an
en, performance, with no intention of misrepresentation
that it amounts to a Robertson,
fact.
229 Ark.
Robertson
A
tive trust is shown convincing
clear and evidence that
grantee’s promise intentionally fraud grantor grantee
ulent or that the and the
were in a confidential relation. Walker
Biddle, 225 Ark. review, give
In our we due defer superior position
ence to the circuit court’s credibility
to determine the of the wit weight to be
nesses and
accorded to
Hall,
Hall v.
as to whether Charles to his name on the
place property was con
flicting. The circuit court resolved that Therefore, Myra’s
conflict in favor. we
can find no error in the circuit court’s not impose
decision constructive trust.
Affirmed; appeals’ opinion court of va-
cated. Ark. BRAVE, Appellant BRAVE, Appellee.
No. CV-12-479. Appeals
Court of of Arkansas.
2,Oct. 2013.
Rehearing Denied Nov. 2013.
ing
to find that the restaurant’s
personal
and thus non-mari-
2)
tal property, and
the trial court erred
dipping”
“double
into his future earn-
ings
when
both divided the
alimony.
agree
awarded
We
Peter’s
point,
first
and therefore reverse and
12remand.1
met,
parties
At the time the
Peter
working
Hotel,
Capital
as a chef at the
employed
and Marie was
as a waitress
and,
there.
parties
married
in August
1991, opened BNR. Peter testified that he
creates and executes the menu at BNR
job
and that his
is to know what the cus
that,
tomers want.
parties agreed
kitchen,
while Peter worked in the
handled the “front end” of the
including scheduling
ordering
staff and
li
quor
According
for the restaurant.
to Pe
ter, although
very helpful
Marie was
Firm,
Short,
by:
James Law
Lee D.
for
beginning, she became less involved after
appellant.
their two children were born. Peter testi
longer
fied that Marie was no
involved in
Firm,
Rock, by:
Lueken Law
Little
Pat-
operating the
once it
restaurant
moved to
Lueken;
James,
House,
ty W.
Fink &
its current location in 2000.
Rock, P.A.,
House,
by:
Little
Matthew R.
appellee.
for
expert
Both
and Marie offered
appraisers
gave
opin-
real-estate
who
WALMSLEY,
BILL
Judge.
H.
to the value
ions as
restaurant
|!
space.
Peter Brave and Marie Brave own a
Peter also introduced
very successful restaurant
in Little Rock from Gus
a business consultant
Brave
Incorporated
called
Braves to handle account-
employed
d/b/a
BNR).
(hereafter,
ing
payroll
New Restaurant
When
for BNR. Dobbs asserted
$819,057;
parties
twenty-two
divorced after
that BNR’s
amounted to
years
marriage,
Peter was ordered to
Dobbs also testified that
$420,000
pay
separated
for Marie’s interest
BNR.
business itself could not be
from
because,
sense,
In a
“In
subsequent
following
order
Peter’s Peter
real
request
findings,
for additional
the trial
business is Peter Brave. The whole busi-
good-
personality.”
court found that the restaurant held
ness is his
Dobbs described
and,
consequently,
unique operation
will that was
BNR as a
a hard-to-
property.
points
simply
Peter raises two
find location and stated that Peter
1)
appeal:
replaced.
the trial court erred in fail-
could not be
Dobbs further tes-
merit,
appeal;
1. Marie filed a
and it is therefore denied.
motion
dismiss
however, we
the motion
be without
find
say
Any
value that attaches to
tified that he would not
whether
ness asset.
Id.
entity solely
personal
as a result of
goodwill of the business
(non-marital).
(marital)
nothing more than
goodwill represents
which,
capacity,
probable
earning
future
decree,
In
the trial court
the divorce
although
determining alimony,
relevant in
of the real estate for
found that the value
*3
dividing
nót a
in
proper
is
consideration
|
$495,000
the
and that
Sbusiness
proceeding.
marital
in a
property
divorce
BNR,
furniture,
including
the value of
the
Tortorich,
Ark.App.
Tortorich v.
50
fixtures, goodwill,
equipment,
(1995).
247
“The
902 S.W.2d
Tortorich
$895,000. The trial court then deducted
and Wilson cases confirm that the burden
$550,000
debt of
and concluded that the
is on the
who seeks
business,
including
net value of the
todisestablish
goodwill
produce
as a marital asset to
con-
real
The trial
property,
vincing proof delineating
profes-
between
$420,000
in-
court awarded Marie
for her
goodwill
sional
the one hand
terest
in the restaurant and later ruled
goodwill
sonal
on the other.” Williams v.
goodwill
that the
in BNR was
Williams,
294, 314,
82
108
goodwill and therefore marital property
(2003).
629, 642
and that Marie was entitled to one-half.
recognized personal
Arkansas has not
respect
With
to the division of
business;
goodwill
non-professional
in a
case,
property in a divorce
we review the
unique
under the
facts of this
judge’s findings
trial
of fact and affirm
case,
particular
extending
we are
the con-
clearly
them unless
are
erroneous.
to BNR
cept
presence
because Peter’s
is
Cole,
v.
89 Ark.App.
Cole
201 S.W.3d
essential to the success of the restaurant.2
(2005).
finding
clearly
A
erroneous
trial judge
credited Dobbs’s
court,
when the reviewing
on the entire
appeared
recognize
that there was
evidence, is left
firm
definite and
goodwill
what amounts to
conviction that a mistake has been made.
commented,
BNR.
“I
judge
The trial
think
Id.
has
some
[Peter]
“[Peter]
up goodwill.”
judge
The Arkansas
has built
stated
that,
has held
goodwill
for
to be marital
that
the loss of Peter to the restaurant
property,
“very, very damaging”
it must be a business asset with would be
that,
restaurant,
independent
presence
value
repu
or
if Peter left the
“it
tation of a
v.
judge
individual. Wilson
would not be the same.” The trial
Wilson,
recognized
never said that the restaurant could not aging. you But long as could still call it aspect on without Peter. A main Restaurant, Brave New as it long as was sonal associated with a there, long still as had still the is that the menu, people would come for a while.” not saleable and the business cannot sur- The court did not come unmoored from the key person vive if the so-called is cleaved finding record in that the restaurant could from it. Dobbs’s own therefore continue without Peter. There was testi- directly undermined Peter’s personal— mony that Peter vacationed for weeks at a goodwill argument so the circuit court —or time, having employees trained other to concluded, reasonably could have and in manage the restaurant in his absence. Pe- fact did. ter told the court that “delegate he could denying There’s no that the circuit court daily the operational stuff.” And he had up looked to Dobbs. has built “[Peter] everything trained his sous chef to “mimic goodwill. Whether someone could come in wonderfully.” Peter’s staff in general can step into his shoes is a little bit hard said, recreate his food creations. He also say, to I’m taking your witness “I myself do need to kind of wean from [Dobbs],” said the court from the bench. guess by doing also and I [the restaurant] precisely by What the court meant go working can ahead and start statement is unclear. So we return to the making anonymous.” it a little bit more order, written which tells us that whatever notes, parties’ merit of witnesses’ and There is more. As the testimony, the circuit court as fact-finder the Braves were married when start- ultimately rejected personal-goodwill early ed the business in the 1990s. Marie argument. it And did rec- was then and has remained a 50% share- contained, in judgment, closely-held corporation. ord its insufficient holder in the Ac- proof that the goodwill cording equal legal rath- Marie had decisions, checks, corporate; conversely, power er than or the rec- to make cut
47
business, just
purpose
run the
as Peter did. Peter
of a dissolution proceeding^]”
supreme
also
that Marie was the one who The
court then recognized that
kept up largely
company’s professional practices
has
were a special class
has
given
particular “difficulty
finances.
She
also
held
cases
|flrestaurant’s
license,
liquor
received a sal-
arise in valuing
professional
[that]
a
practice,
|inbecause
ary
during
from the restaurant
the mar-
likely
riage,
bookkeeping,
depend
professional
did some
and worked
on the
reputation and
Yet,
sporadically.
majori-
continuing presence
there
under the
of a particular individ-
ty’s
monetary
view she receives no direct
ual in that practice.” Id. So the Nebraska
upon
benefit from the restaurant
the disso- opinion that started Arkansas down its
marriage.
lution of her
professional-goodwill path acknowledged
enterprises,
that most commercial
includ-
began recogniz
In 1987 Arkansas courts
ing their
goodwill,
typically
related
would
ing personal/professional goodwill
di
fall within Nebraska’s marital-property
vorce cases where the business
statute.
professional
association and the
claiming “personal”
“professional” good
majority provides
legal
no
rea-
why
husband who was
licensed
son
Arkansas’s marital-property stat-
heavy referral-type
with a
apply
ute should not
in the usual sense
Williams,
narrow,
practice.
except
rely
See
generis
Williams
one
sui
(2003)
Ark.App.
(gas
professional-practice
class of
cases—which
troenterology-surgery practice);
today
Tortorich
expands significantly, while re-
Tortorich,
versing
902 S.W.2d
a circuit court’s fact-intensive de-
(1995) (oral-surgery practice);
a disputed evidentiary
Wilson termination on
rec-
Wilson,
ord,
using
and when
one of this court’s
(1987) (orthopedic-surgery practice).
In most deferential standards of review.
cases,
each of these
the husbands owned a
Finally,
utility
wonder about the
association,
*6
part
professional
or all of the
fairness of the decision to
this
remand
case
lawfully
and the wives could not have
to the circuit
it
court so
determine
owned an interest
portion
personal
“what
of BNR’s value was
they were not themselves licensed profes
goodwill.” How is the circuit court to do
(now
155, §
sionals.
Ark.
See 1963
Acts
now what it could not do before? At the
§
codified at
Ann.
Ark.Code
4-29-208
hearing on Peter’s
motion the
posttrial
(Repl.2001)).
said,
testimony
court
...
valu-
“[T]he
[on]
point.
helpful, my opinion,
One more historical doctrinal
ation is not
in
to the
professional-goodwill
[personal goodwill] argument.”
Our short
line of
The cir-
directly
explained
eases stems
from one Nebraska
cuit court then
that the valuation
opinion, Taylor
v. Taylor,
Court
consisted of assessments of
729,
851,
222 Neb.
386 N.W.2d
what
restaurant would sell for on the
importance
open
“[H]onestly,
put
This has some
be-
market.
since it was
cause,
Brave, mean,
Taylor,
by
before the
Su-
Nebraska
on Mr.
assumed that it
Now,
preme
recognized goodwill the was more or less
to.
I un-
(a
professional
practice
argument
context
doctor’s
derstand the
that some of all the
there),
supreme
goodwill might
personal,
was at issue
court
I don’t
intangible
any
any way
noted that the
value businesses
to allocate it.”
business—
patronage “may
My concluding point
have due to
be considered
is this: Peter had his
part
as a
of the marital estate for the
chance to establish
and
(or
else)
hand,
majority
through
anyone
Dobbs
On the other
is cor-
its worth
go
the first
around. He failed to do so.
rect in that if the marital property includes
prove
even if Marie had the burden to
And
goodwill unique
to a licensed
|
restaurant’s value
good-
professional, then the value of that
nthe
personal goodwill,
than
she
goodwill rather
property
of
is
sole
112retained
when our
degree
did so to a sufficient
professional,
the licensed
unless the non-
properly
review is
appellate
standard
professional spouse
prove
can
otherwise.
applied.
That
exception is found Wilson Wil-
(1987)
son,
Ark.
S.W.2d 640
HIXON, Judge,
KENNETH S.
the li-
progeny,
indicating
its
dissenting.
merely
is
professional’s goodwill
censed
dissenting
The
and the other
representation
person’s
of that
future
opinion
partially
are both
correct. Each
earning capacity.
problem
is that the
opinion
appro-
bases its conclusion on the
“professional
license
ex-
Wilson
priate
proof. Ordinarily
burden of
all
ception has never
in Arkan-
been extended
property acquired through marriage is
beyond
professional practice,
sas
a licensed
property,
marital
and the
who is
specifically
practice.
a medical or dental
seeking
to exclude the
has the Here, Brave, Inc.,
profes-
is not a licensed
§
proof.
burden of
See
Ann.
9-
Ark.Code
Indeed,
practice.
only
sional
license at
12-315;
Carroll,
Carroll v.
license,
liquor
issue here is the
attained in
Here, Brave, Inc.,
do not believe it is reversible error for the correctly apply existing
circuit court
law, way knowing majori- that a with no
ty judges on our divided court would change.
make such a Because Peter error, I to demonstrate reversible
1^failed
would affirm. ADAMS, Appellant
Danielle Kira ADAMS, Appellee.
Rebecca Roseanne
No. CV-13-275. Appeals
Court of of Arkansas.
Jan. 2014. notes alimony trial court then reassess ac- favorably that Dobbs testified for Peter’s cordingly. personal-goodwill argument in some re- and remanded. Reversed spects. who admittedly was not a expert business-evaluation but a tax advis- GLADWIN, C.J., and WHITEAKER or, used an approach” “income to value the VAUGHT, JJ., agree. goodwill associated with Marie’s and Pe- HIXSON, JJ., HARRISON and dissent. ter’s business. The number he deduced was He said the business has no HARRISON, Judge, BRANDON J. equity goodwill. without dissenting. But Dobbs also testified that his calcula- corporate-goodwill The circuit court’s were tions based the restaurant’s value determination is the crux of this case. We ongoing as an business with—of all previously recognized goodwill that a things replacement for Peter. chef —a a inquiry. determination is fact-intensive majority And as the notes but does not Cummings Cummings, credit, permit the circuit court to Dobbs 315, 323, say testified that he could not whether the the circuit court heard goodwill restaurant’s corporate argument goodwill on the issue and Moreover, sonal. when lawyer Marie’s persuaded concluded that it was not that asked Dobbs about his statement that “the goodwill argued Peter for was personal personality” whole business is [Peter’s] rather That corporate. than decision was Dobbs that the restaurant would proof based on the and the court’s credibil- stepped away not suffer if Peter for two determinations; ity we should not disturb said, “Well, might weeks. He then disturbed, part, it. But it has been make it two months.” Next came this believe, majority because the did not view exchange between Dobbs and Marie’s law- light all the evidence in a most favorable to yer: Marie, requires. as our standard of review If he [Peter] Marie’s Counsel: Here’s the standard that should drive away years, hap- for two what would decision-making process this divorce pen to the of this business? review anew: case. We the entire record Well, superior position We defer to the something Dobbs: that credibility circuit court to assess the intangible depreci- is an asset and it time, weight give witnesses and the it should why buyers ates over and that’s buy proof they provided when come business ord sufficient number, corporate, personal. not look at the know that can’t maintain only Dobbs was testi- not one who time, necessarily period over fied about the restaurant’s worth. Two standpoint. at it from that they look nationally-certified, business-appraiser ex- |7When questioned by attorney, Peter’s perts using valued restaurant several 18methods, Dobbs said: including different the same approach” “income Dobbs used. That the That has one of the most restaurant experts court did not mention these other in it unique operators I’ve ever seen.... in its order or divorce decree does not unique operation It is a that’s been built necessarily ignored mean it them. But nobody in a location that can find real experts ignored, even if all other were easy. yes, he So would be difficult not, Dobbs himself could as the replace, my and that was most diffi- acknowledges, delineate between make, cult what number do decision assign each a you plug replace in there to value; sup- how then was the circuit court Brave. posed to do so? point The material is not that the location too, Consider, what the court stated at nothing of the restaurant has little or to do the trial’s end: “the loss of Mr. Brave to personal goodwill, that Dobbs