*1 161 urges juror appellee’s due to contact witnesses 9(d) Rule setting this sufficient reason aside verdict. Court Supreme our Rules states that appellant’s parts pleadings, abstract should consist “material documents, facts, in the record as other matters proceedings, are to an of all necessary understanding questions presented this court for decision.” in her brief to Kratzke refers affidavits juror but fails to misconduct abstract them. Under supporting circumstances, these Rule us precludes considering Center, on merits. See Turner v. Baptist Medical argument its 424, 275 (1982). 631 S.W.2d Affirmed.
E. Leon NICHOLSON Inc., v. Ivy Realty, CENTURY
et al.
91-119
Supreme Court of Arkansas Opinion delivered November *2 Thaxton, Hout, Howard, Nicholson, & E. Leon Nichol- by: son, for appellant. L. Lindsey Griffin, & Wendell
Wright, Jennings, by: appellees. Brown, E. Leon Nichol-
Robert L. Justice. The appellant, son, from a for deceit in favor of the judgment appellee, appeals $105,000. the judgment amount of The was in Billy Ivy, C. the like nature of an for a entered in amount indemnity Maurice and against Virginia and in favor of Ivy negligence error, Odom. no we affirm. Finding known as Odom This case involves the sale of real property of that sale. Skating financing Rink and Rental and the Property Odom, 10,1983, who owned Virginia On Maurice February the broker sell listing the a as realty, signed agreement listing was for a property. original agreement price $424,000. No to that amount. agreed prospective purchaser Thereafter, between the listing signed a second was agreement 24, 1985, asking with an price same parties February $390,000. figure. no was found for the listed Again, buyer contacted Nicholson about
During period, Ivy purchas- 4,1985, on a agreed On and Nicholson ing June property. $275,000, memorialized in figure was purchase price offer and Nicholson which showed signed by acceptance father-in-law, Allbright, Nicholson and his Walter as the buyers. of a The sale was price comprised assumption promissory 10,1971, dated note Odoms February owner, Holbrook, Dan and his wife. That note original secured deed of trust on the real The offer property. Allbright further entailed a down to the payment $50,000 Odoms of and note to the Odoms in the approximately $125,000 amount of by mortgage secured to be property sold. offer Attached was list of mobile homes which the Odoms would a security interest as additional collateral $125,000 for the accepted note. The Odoms offer. *3 Between the and offer the sale’s the closing, buyer changed from Allbright Nicholson and a formed corporation by them Investments, named Popeye Inc. The was formed corporation on 10,1985, for the the July purposeof buying The Odoms’property. Odoms agreed to a but corporate purchaser agent, told their Ivy, that they required personal guarantees from Nicholson and Allbright. Ivy testified at trial that he told specifically Nicholson personal guarantees that were Nicholson denied required. assertion. 22, 1985,
The sale at closed Nicholson’s law firm on July with Popeye purchasing the The Odoms property. given were a note corporate from with no Popeye guarantees and no personal security interest in the mobile homes. also They received down $52,242.99; $13,200 payment of that amount was paid for his services. down The payment financed loan to by Tuckerman, Popeye the Bank of secured second by mortgage the real A interest in the 32 property. security mobile homes was also as additional collateral Popeye loan. Both Nicholson and Allbright personally guaranteed the loan. Nicholson,
At the closing, who is attorney, represented his as a interest The not principal Odoms did Popeye. counsel present. at Ivy testified trial that Nicholson had said his law firm would the documents and counsel prepare separate was not necessary. Maurice Odom also testified that told him that Nicholson had said unnecessary. counsel was It is separate firm the warranty
not that Nicholson’s law disputed prepared and that Nicholson personally deed and bill of sale for Odoms giving remaining disputed documents. on whether the Odoms should have independent advice any Mr. and Mrs. the son- Twyford, counsel. Also at Twyford Holbrook, Dan mortgagee, of the first daughter in-law guarantees raised the issue of they personal testified Holbrook a giving because Allbright, Popeye assured new note to the 1971 Odom note. were They replace were not because Holbrook would still guarantees necessary, and the Odoms mortgage property. Ivy deny retain first guarantees discussion of at hearing any the sale to sold the day corporation after Popeye, Calhoun, to Harold who had it for several managed property $400,000. few years, for After a months Calhoun defaulted and Church, was sold to the First which also property Apostolic one later. The Bank filed a foreclo- year defaulted approximately mortgage joined sure action on its second and the Popeye Odoms as defendants. After in favor of the parties Bank, Nicholson and Allbright purchased at the property $62,150, foreclosure in full sale for satisfaction of the Bank’s debt. The Odoms were judgment against awarded but Popeye note, received nothing at the foreclosure sale on the Popeye assets, because had no and the from the Popeye proceeds foreclosure sale were sufficient to off the Odoms’s third pay mortgage. *4 suit,
As of the Bank’s part foreclosure the Odoms filed a third party against and due to complaint Ivy alleged negligence Ivy’s failure to obtain guarantees of the note from Popeye in cross Allbright. Ivy against turn filed a claim Nicholson for After full trial before the indemnity. chancery court, was judgment entered in favor of the Odoms and against Ivy, and was awarded over Nicholson Ivy against for — deceit for the amount that was to the Odoms pay required $125,000.
For his first Nicholson point, contends that the chancery court erred in numerous fact. He that making findings says whole, taken or as a these errors in the court’s individually findings mandate reversal in a case where a fraudulent course of is at We those seriatim: findings conduct issue. discuss 1. The found discovered for the Twyford court that Mr. was be going
first time at that closing Popeye substituting new note to note replace and note to be Holbrook the Odoms that the was in both argues liberalized. Nicholson error that in were aware advance that a Twyfords closing liberalized note be replacement given. would 2. The court found told that Mr. that Twyford note,
individuals would be the makers on the was nothing said about a maker. corporate Nicholson argues error in this that implies Twyfords were not aware of the note is Popeye closing. until This correct, Nicholson, not according to Mrs. since testified she Twyford that knew it was be a going to note corporate closing. before 3. The court found did that Nicholson not do title
opinion on the for property but had he done one for the Bank of the second anticipation mortgage the financing for the down payment. firm, he, argues Nicholson error in that lawhis Moreover, title Bank. opinion he argues that the Odoms were not looking him a title or opinion legal counsel.
4. The court found $38,042.99 that the Odoms received
in cash at argues error in that $13,200 omits the commission was to their paid broker, in, real estate When Ivy. factored total $51,242.99. to the payment Odoms at 5. The court found that Popeye capitalized only
$300. Nicholson argues error fact Popeye $55,000.00 Bank, received from the of which $51,242.99 was then paid the Odoms as a down payment.
6. The court found that Nicholson told Mr. Odom at
closing that “just note was like Popeye cash.” *5 Nicholson in argues error statement solely made for the of purpose impressing upon Odom in safe the need to the note put place. of Nicholson assumed the role 7. The court found that Popeye, attorney for buyer, attorney, attorney for the seller at buyer, attorney for the —roles Nicholson error in that three of those argues buyer, for for the and the attorney Popeye, attorney — Also, his law firm only are one and the same. buyer $75 deed and bill warranty charged preparing representing of sale for the on behalf of Twyfords Odoms while the were there Holbrook.
8. The court found that it was “unbelievable” that a third an amount twice the size of the
mortgagee financing mortgagee second would not receive the same protec- the second guarantees tion such as personal mortgagee argues received. Nicholson error that a his gotten nervous seller who had not first or second asking might agree guaran- well to no price tees, when the seller could easily especially of exceeded believed that value the real property the total indebtedness. allegations
Nicholson concludes that these of error the chancellor militate for deceit which against judgment That, must be “clear and convincing evidence.” proven however, deceit, is not the standard of for cases when proof alteration of a solemn is not involved. See v. writing Grendell Kiwhl, 228, 723 Brand, (1987); S.W.2d 830 v. Clay 236, 365 Rather, (1963). Ark. S.W.2d 256 the standard deceit is of the evidence. Id. We hold that there is factual preponderance justification in the record for each of the chancellor’s findings fact, and we are not one of the say any eight 52(a), erroneous under Ark. R. Civ. P. or that clearly magnitude combination are of sufficient to warrant reversal they judgment. For his second that the facts of point, urges the case do not in deceit. We have held that support five elements establish the a false tort deceit: representation fact; knowledge material or belief on the of the part person is false or that making representation representation
167
there is
sufficient basis
information to make such a
induce the
or
intent to
other
to act
refrain
representation;
party
in reliance
the
acting
justifiable
upon misrepresentation;
in
reliance
the
the other
upon
representation by
party
taking
action;
See
resulting damages.
and
Brookside
Mobile
Village
Meyers,
(1990);
Homes v.
301 Ark.
In cases of the of the credibility deceit witnesses is all and it the trier of important determining liability, fact that is the of the judge credibility sole the witnesses and of the weight Johnson, 14, 781 and value of the Fuller evidence. See v. us, S.W.2d (1989). In the case before the chancellor the fact, witnesses, trier of and he had the to observe opportunity the judge their and credibility, weigh value their testimony. Nicholson,
It is as undisputed and attorney Popeye one of its principals, obligate made no effort to himself personally to the Odoms the balance of purchase Dan price. Holbrook, who was a note without Popeye guarantees, had a mortgage first The Bank as second property. mortgagee had note but also Popeye guarantees and a personal in the security interest mobile homes. held Only Odoms Popeye note secured a third no mortgage but with other protection.
The chancellor placed great fact emphasis Nicholson had taken to make pains the Bank secure guarantees and a homes, interest in security the mobile but he had failed to afford the Odoms similar This protection. discrepancy treatment was found to significant be evidence of the deceitful activity complained of. He further took note of the multiple roles played by closing Nicholson at and of the fact that particularly law Nicholson’s firm had legal services to the provided who were not represented by counsel at sum,
In there was substantial evidence of record that Nicholson agreed to the and a personal guarantees security interest in the mobile homes his offer but then documents that did not By reflect this fact. this action Odoms were induced complete sale under the misapprehension guaranteed note would be Popeye that additional given, damaged. would be were Under these
security they fiveelements were establishing facts the deceit and we so present, hold.
We consider finally Ivy’s motion for costs on appellee that he was to incur these costs due to grounds impelled agree. Nicholson’s deficient abstract. We do not The abstract *7 filed Nicholson in with his brief was sufficient by conjunction to loe, the issues determine raised See Goodloe v. Good appeal. 253 Ark. 487 S.W.2d (1972).
The judgment of the chancellor is affirmed. The appellee’s motion for costs is denied.
Newbern, J., concurs. Newbern, Justice,
David concurring. The Chancellor that, found that in not Billy Ivy negligent seeing to it after the terms, Odoms and Allbright had new agreed to offer and document was not acceptance revised. was also Ivy recommendation, found negligent Nicholson’s accepting it on to passing that the Odoms did not need independent counsel for the real estate complex transaction.
The Chancellor concluded the to the Odoms injury resulting from Ivy’s negligence would not have occurred if Nicholson had not to misrepresented Ivy that Nicholson and remained Allbright personal guarantors of the obligation to the Odoms of the note to them from Popeye It was on this Corporation. basis that the that, Chancellor held despite Ivy’s negligence, was entitled to Ivy be indemnified Nicholson by for the entire to be damages paid the Odoms. argues elements of the tort of deceit
been satisfied. If we the matter in pursue suggests, he we way will raise the question whether a chancellor should ever try intentional tort claim as an “incident” to another matter of which the chancellor has jurisdiction. We need not do so.
We should be here dealing with the law of rather indemnity than the law of deceit. is not whether question the elements of deceit were satisfied. The is whether question indemnity of proper. By way an obiter dictum this Court stated Larson Machine, Wallace, 192, 213-14, Inc. v. 600 S.W.2d (1980):
It of has been stated that the doctrine appropriately principles based restitu- indemnity upon equitable tion which who is permit compelled pay money, one another, which to be to recover the injustice ought paid by sums so unless the is barred paid payor wrongful his nature of own conduct.
Although the could Chancellor have found that Nicholson’s deceit, conduct in this case fit it the elements was only shown, be necessary that it as matter equity, Nicholson’s were should misrepresentations such he reimburse the amount was found to owe the Odoms.
It is not necessary to find that Nicholson committed a tort however, require equitable restitution him Ivy; case which restitution of one tortfeasor another was discussed law, presents good A of Arkansas analogy. survey indemnity was provided by the Court United States for the Appeals *8 Eighth Lynch Circuit Merrill v. First Bank Nat. Little of Rock, 909, 774 F.2d 918 (1985). The discussion of the of matter indemnity between tortfeasors was as follows: third of case is type indemnity characterized by of
breaches different duties owed the tortfeasors to the injured party. actions and Product-liability defective- premises cases give us most of the case law in this In area. case of this kind of typical supplier defective product is found liable the injured (on consumer a strict- or liability is warranty theory) but allowed indemnity the manufacturer product ground apparently that that manufacturer’s negligence a defec- producing tive product is direct more palpable supplier’s failure to discover the As in defect. the case of imputed liability, justification for if the indemnity disappears supplier himself proximately at fault failing Motors, inform the consumer a known defect. Harrell Inc. v. Flattery, 272 Ark. (1981) S.W.2d 727 omitted, emphasis original.] [Footnote While might it be troublesome of the to some scholars law indemnity that an equitable liability transfers from one remedy another, with no leaving liability one of tortfeasor them whatever, the manufacturer-seller If had apt. analogy to have known documents legal prepared by been found and his law firm were to Nicholson’s assur- contrary ances, then total would not have been presumably indemnity Here, however, legal Nicholson’s relying proper. to effect of the deal as well as that of Ivy’s understanding expertise the parties. Court,
While I concur in the I so on result reached do the basis that restitution was indemnity by way equitable rather than on the that Nicholson was of the guilty basis proper tort of deceit. III,
Harold HENDERSON v. Fred D. DAVIS
Judge
91-93
Supreme Opinion delivered November *9 se. Appellant, pro
No response. Henderson,
Per Curiam. Harold asks the petitioner, court to reconsider his motion to have the General Attorney print