*1 49 al. et al. SANDERS et L. STINE (Davis) Vera Bucky 987 S.W.2d CA 98-110 Arkansas Court Appeals III Divisions II and delivered March Opinion *4 P.A., Lewis, Lewis, P. P. for by: appellants. John John Firm, Law Michael H. by: Crawford, appellees. Crawford Mauzy The Pittman, an Judge. John appellees brought action the against com- appellants alleging appellants mitted the torts of deceit and interference with a business expec- the tancy during business the purported purchase appellees’ trial, Don Davis. After a a verdict was returned in appellant, jury deceit, favor of on the issue of and a judgment $60,000 entered in the amount of assessing damages against appel- $65,000 lant Don Davis and in the amount of against appellant $65,000 Vera Stine. The assessed Vera Stine against appellant
53 $5,000 decision, included in From that comes punitive damages. this appeal. reversаl,
For contend that the evidence is insuffi- deceit; cient to the that the evidence support jury’s finding insufficient to award support punitive damage against appellant Stine; Vera and that the trial court erred in denying appellants’ motion for a new trial. We affirm.
We first address
contention that the evi
appellants’
dence is insufficient to
support
deceit. The
jury’s finding
tort of deceit consists of five elements that must be
proven by
of the
preponderance
evidence:
a false
(1)
of mate
representation
fact;
rial
(2)
that the
is false or
knowledge
that there
representation
is insufficient evidence
which to make the
upon
representation;
intent
(3)
to induce action or inaction in rebanee
upon
repre
sentation; (4)
rebanee on
justifiable
and (5)
representation;
sufferеd as a
damage
result of the rebanee. Roach v. ConcordBoat
474,
317 Ark.
Corp.,
S.W.2d 305
Our
in
(1994).
standard
of the
reviewing
evidence is
sufficiency
web settled:
(1)
evidence is viewed in a
most favorable to
bght
appehee; (2)
wih be
if
jury’s
there is
finding
substantial
upheld
evidence to
it; and
substantial
support
(3)
evidence is that of sufficient force
and character to induce the mind of the fact-finder past specula
tion and
Burden,
269,
Medlockv.
conjecture.
321 Ark.
900 S.W.2d
deceit,
In cases of
(1995).
of the witnesses is
credibihty
vital in
and the trier of fact is
determining liability,
the sole judge
of the
of the evidence.
weight
Id.1
credibihty
1 Mr. Davis testified that he never offered to
business. Mr.
purchase appellant’s
Sanders testified that Davis did make
an
such
offer. This conflict in the
is the
testimony
jury
crux of this case. The
dissenting judge
believed Mr. Sanders. The
not,
does
and the
dissent is founded on thе
rejection
no offer to
was made. This
of the
premise
purchase
jury’s
concerning
determination
long
the central issue in this case is
to a
credibility
contrary
holding
line of authorities
that,
cases of
deceit,
of the witnesses is all
credibility
determining
(1992),
Ellis v.
Liter,
Ark.
Viewing of the owners are shows that the record to the appellees, business, and Detective Corporation. Sanders Security a sеcurity 1994, advertised and in October their business to sell They sought $200,000 in of newspapers an sale for asking business for price one Don Davis saw of Dallas. Little Rock and Appellant regarding purchase and contacted appellees advertisements various discussed and met with Mr. Sanders Mr. Davis business. Stine, was who employed Vera the business. Appellant aspects business, with Mr. Davis of their provided as manager by appellees business the clients of the some of informational listing an packet also, in further- She from those clients. derived the income and business, took Mr. Davis sale of ance of prospective met with Mr. Davis clients of Sanders Security. business several with information regarding was provided attorney appellees’ returns, business, additional financial tax debt of tax at the offices of met Mr. Sanders Davis then with Mr. documents. and Mr. Sand- Mr. Davis 1994. on November Sanders Security for sale of the business for the an oral ers reached check for the $120,000, Davis and Mr. agreed provide However, week. the next from his accountant price purchase was no check canceled the Mr. Davis never agreement, although time, her as Ms. Stine job this same quit At about ever provided. with Mrs. an argument Security following Sanders manager was November for Security last of work Her day Sanders. that she going Ms. Stine told appellees 1994. Although Mall, do so. Unbeknownst she did not work University with Mr. Davis that a romantic involvement she began appellees, Ms. Stine be married. in their engagement culminated 9, 1994, and, on November license her own security obtained Davis, Inter- rival formed a security with Mr. together and Investigations. state Security former with employees rival business was The staffеd to defect induced by appellants. who were Sanders Security Mr. Davis when Sanders Security sixty-five Where employees because do them weight given their we to be of the witnesses and testimony, adopt not within the in the resolution of conflicts province testimony simply Id. court. appellate *6 one month later Sanders agreed purchase Security had five the rest to work only remaining having gone employees, for at Interstate Such defections would nor- Security. have been because it was standard for mally impossible, practice to have its execute an not Security employees However, to work for firms.2 the records of these competing were The office for Sanders agreements Secur- missing. secretary Cora continued to work for Sanders until ity, Maglero, November 14, 1994. She no notice of her intent to her gave appellees quit work, On Ms. last a job. Maglero’s day housekeeping employee saw her documents from the office com- printing great many she not been asked to out puter, She although print anything. told the that she had to the docu- housekeeping employee get left, ments off the before she and was seen computer taking documents out and them in the back seat of her red con- placing vertible. Ms. then returned to the office and continued Maglero to work on the Later that computer. day, housekeeping house, saw Ms. auto at Ms. Stine’s and employee Maglero’s parked she continued to see Ms. car there Maglero’s parked every day, Ms. admitted that morning night. she went to work Maglero Ms. Stine. Ms. from Sanders Following Maglero’s departure it was discovered that the Security, business data on the company had been deleted: tests showed computer completely Diagnostic that an enormous amount of had been done on the printing days Ms. and that the immediately preceding Maglero’s departure, business information had been deleted on Ms. last Maglero’s day of work.3 wrong stating The dissent is that there is no evidence that simply employees signed preventing going competing documents them from to work for security companies. generally
After describing the nature of the documents, Mrs. Sanders testified that we “[i]f would have had the documents that had been taken from the files the men, then they go would have been able to to work for but the were Interstate, documents taken out of objection their files.” There was no to this Without a it would doubt, be testimony. examine the documеnts themselves in this instance in their but, absence, to preferable regarding unjustly refuse to credit Mrs. Sanders’s their contents would be to testimony reward who stole them. parties 3 Conceding Maglero large that Ms. number of documents and removed printed them to her auto on her last work, dissent nevertheless makes the somewhat day puzzling Maglero assertion that there is no evidence that Ms. took company’s missing Although concerning records. it is true that no could employee eyewitness testify rival company appellants’
Staffed with
employees,
appellees’
Timberlands,
well.
clients as
Anthony
soon obtained appellees’
Club,
Nickle Molding,
Oaklawn Jockey
Turf Catering,
*7
with
shortly
their contracts
appellees
canceled
Lauray’s Jewelers
service
and obtained security
date of the sale agreеment
after the
been clients of
firms had
Several of these
from the rival company.
firms canceled their
of the
Several
for twenty years.
the appellees
workers’
that
learning
appellees’
contracts with appellees upon
Ms. Stine was
had lapsed.
insurance coverage
compensation
insurance for
workers’ compensation
for maintaining
responsible
business,
the insurance
been contacted
agent
and had
by
appellees’
reinstated the cover-
Ms. Stine neither
yet
regarding
problem,
about the
nor informed
problem.4
age
she
Maglero and
in her auto before
Ms.
which documents were
by
placed
printed
exactly
including the vital
records,
it is clear that the
time,
work for the last
left
employee
Maglero had control of the
missing; that Ms.
agreements, were
computer
noncompetition
anything;
asked to
that an
Maglero
Ms.
had not been
in
that
at the time
print
question;
Maglero
in a
to
that Ms.
was
printing
done;
of
was nevertheless
hurry
enormous amount
time;
for the last
that the
printing before she left the office
this
printed
accomplish
was
Maglero’s
that
this automobile
automobile;
in Ms.
documents were deposited
Ms. Stine
house;
Ms. Stine’s
and that
thereafter
seen
at
parked
immediately
Maglero
When
which Ms.
was
a rival business
founded
employed.
by
contemporaneously
her
of her reason for
light
Maglero’s somewhat dubious
in
of Ms.
considered
explanation
that the business records on
and of the evidence
employ,
hasty departure
appellants’
Maglero’s
deleted Ms.
to have been
on
were
found
completely
subsequently
computer
missing
Maglero
records is
that Ms.
took
work,
final
the evidence
employee
day
in secret and,
compelling.
are,
nature,
Fraud and deceit
their
accomplished
frequently
that fraud be shown
to the
it is not
the dissent’s
necessary
contrary,
implication
despite
(1937).
105
85
Haven,
31,
Paciniv.
194 Ark.
S.W.2d
evidence or
direct
testimony.
positive
jury
as is
where,
for the
to infer fraud
evidence can
a basis
Circumstantial
provide
intent.
Interstate
Id;
are inconsistent with honest
the case
the circumstances
here,
manifestly
(1992).
310 Ark.
Appellants the sort of business was not misrepresentation the purchase of a not a lie because it was misrepresentation deceit will which in fact, to do something instead but was merely promise present rule, that, of it is true as a general promise the future. Although fraud or the basis for a claim of not form future conduct may Inc., Schools, 333 Ark. deceit, Tee,Inc. v. Venture Golden Golf mak- if the rule will not party 625 this (1998), apply 969 S.W.2d its heаd on set the of (1984). would, effect, The dissent fiduciary duty concept the Ms. Stine confidence bestowed holding great trust and upon of that trust. complaining breach from barred them subsequent 58 the false at knew the time it was made that it would
ing promise Bank, not be Undem First National 46 Ark. kept. App. S.W.2d 451 The intent of the (1994). this is a promisor regard case, of fact. Id. We think that the evidence in question this the evidence that Mr. Davis including the busi agreed purchase 4; that, ness on November without he notifying appellees, formed a rival business with and clients on appellees’ employees 9; November business records were appellees’ wrongfully taken to further the formation rival business and wrongfully to hinder destroyed corrective meas appellees taking timely ures; and that Mr. Davis denied subsequently making agree — — ment a denial that the found to be fаlse was jury sufficient evidence to to find that Mr. permit Davis did not intend jury the business when he to do purchase so. promised that, next contend in the
Appellants
absence of a
written
had no
agreement,
on Mr.
right
Davis’s
rely
the business.
promise
There are no
purchase
Arkansas cases on
and there is a division of
on the
point,
authority
question
whether the statute of frauds will bar an action for fraud even
though
fraud is itself
promise underlying
unenforceable
under the statute. See
Statute
generally
Frauds 140
§
C.J.S.
rule, however,
We think that the better
(1997).
is that the statute
of frauds does not
abrogate
common-law
for fraud
remedy
because
fraudulent
merely
was not in writ
misrepresentation
See,
Hanson v.
ing.
Co.,
AmericanNational Bank
e.g.,
& Trust
S.W.2d 302
This view is
(Ky. 1993).
logical corollary
rule,
state,
which has
been the law in
long
this
that fraud
*9
bemay
on
made with
predicatеd
the intent
promises
not to perform
cases,
them. In both
of the fraud is not the breach
gist
of the
but
agreement
is instead the
perform,
fraudulent intention and
of the
Sicard,
See
representation
511,
Piercev.
promissor.
176 Ark.
59
Bolin v.
fraud.
means of
its use as a
perpetrating
or
allowing
459,
17,
143 (1944).5
Ark.
176 S.W.2d
No.
206
District
Drainage
enforce the
not one to
case was
action in the
The
present
that
out
based
grew
but is instead
upon.facts
agreement,
the oral
agreement,
proof
making
been
fraudulent
show that a
representation
offered
only
an action for
frauds as
the statute of
barring
madе. To interpret
would be
fraudulent
from such a
representation
damages resulting
of fraud. See
as an instrument
to be used
to allow the statute
Harrison,
529,
Appellants In relied that any misrepresentation. dence actually upon evidence of two to note that there was context it is this important that Mr. Davis’s on representation appellees: deceptions practiced business, mate concealment of and Ms. Stine’s he would facts Nondisclosure of material the sale. rial facts surrounding where there is rebanee on for fraud be a basis of recovery may Corter, v. 291 Ark. 724 those facts. failure to disclose Copelin bar, at Mr. Sanders testified the case S.W.2d 146 In (1987). the busi that he would buy Davis’s he believed Mr. representation ness, that Mr. Sanders that the could infer and we think jury hе transition while the business was in a brief period bebeved that There was Mr. Davis bring. awaited promised payment dur remained evidence that Ms. Stine by appebees also employed Stine, of Sanders Ms. who as manager Security this ing period. owed appebees controbed every virtuahy aspect Bone, Ark. 678 duty, Tandy Corporation fiduciary record, that, think on this jury and we (1984), S.W.2d to continue rebed on Ms. Stine infer that could appebees properly facts within to disclose faith towards them and to act in good to their business during that were detrimental her knowledge distinguishable length, notes at some are, and Bolin as the dissent Both Betnar This distinction agreements in those cases were because the partially performed. to enforce the and Bolin involved actions case because both Betnar irrelevant in the present agreement, but to was not to enforce action in the case agreement, whereas the present In the context of itself. damages resulting the fraudulent recover misrepresentation general significant as statements of the and Bolin are this Betnar case, proposition only of fraud. be used as an instrument will not be allowed to the statute of frauds *10 to the sale and the brief transition there- leading up period period after. find no error on this We point.
Next, contend that suffered appellants appellees no as the result of their reliance on damage any misrepresentations. that this is demonstrated the fact that They argue appellees sale, were owners of Sanders at the time of the Security purported and that continue to be owners of Sanders aрpellees Security This is somewhat for it present day. argument disingenuous, Davis, the evidence that Mr. ignores having agreed purchase failed to do so but nevertheless obtained the Security, business, i.e., clients, of that its profit-making business aspects records, and We think that the evidence employees. supports that this was achieved the concerted efforts finding to induce Mr. Sanders to believe he had sold the a belief distract attention from the loss of and helped key employees clients, Ms. Stine in depredations practiced by obtaining — records, business of the business employees depredations that were the brief but crucial largely accomplished during period Mr. immediately Davis’s that he following would representation the business. We think that the record purchase also contains sub Stine, stantial evidеnce to show that Ms. while in a fidu employed undermined the business ciary capacity, by failing pay workers’ or inform her compensation premiums employers and that her concealment of this incident led problem, to breaches of Sanders with its clients and the Security’s agreements resultant termination of those contracts. We also think that the evidence that Ms. went to Ms. Stine’s home Maglero directly large with stack of documents on Ms. unannounced last printed Maglero’s of work for Sanders with the day evidence that Security, together Ms. thereafter went to Maglero work for Ms. Stine’s rival com an inference that pany, Ms. Stine and Ms. supports Maglero worked in concert remove and business wrongfully destroy records to their former belonging we think employer. Finally, that there is substantial evidence to show that the removаl and destruction of these business records made it impossible the defection of appellees its prevent employees severely with handicapped rival firm company competing appellants’ thereafter. also were not Appellants argue damaged
61 in such business was because their appellees’ misrepresentations was, event, bound to fail. that it in financial serious difficulty be the sole However, that the it is not misrepresentation necessary cause of the injury: does not cause substantial held that the fraud although
It has been events which subsequent from the damage happening apart if these do happen be expected happen, reasonably may of his act. with the natural chargeable consequences defendant case, fol- that these faсts In such he cannot complain supposed his fraud to cause the dam- lowed as conditions with concurring in reference to the if his fraud was planned probability age, or these events would follow. . . . Fraudulent representations in order to need not be the sole cause of loss misrepresentations actionable; if are a material inducement or be it is sufficient they essential,material, an or cause. inducing record, 2d Fraud Deceit 293 On this we (1968). 37 Am. § Jur. cannot that the could not have found that were say jury hold that there and we damaged by misrepresentations, appellants’ for deceit was sufficient evidence to finding support jury’s against appellants. next contend that the trial court erred in
Appellants that the ver their motion for a new trial on denying ground to the of the evidence. The test dict was сontrary preponderance from the denial of a motion for a new trial is whether on appeal Shine, substantial evidence. Gilbert v. the verdict is supported by our Ark. 863 314 In (1993). holding S.W.2d light verdict, we that there was sufficient evidence jury’s support find error on this no point. assert that there was insufficient
Finally, appellants
$5,000.00
in
evidence to
verdict
punitive
jury’s
support
Ms. Stine.
ordinary
We disagree. Although
damages against
cases,
in an
will not be allowed
recovery
exemplary damages
of a
involves violation
duty
action of deceit unless
wrong
confidence, or the fraud is
trust and
from a relation of
springing
circumstances
are
or
or there
extraordinary
exceptional
gross,
Moore,
willfulness,
malice and
see Dodge
clearly indicating
in this case
there was evidence
Ark.
Affirmed. and and JJ., C.J., Griffen, Stroud, Meads,
Robbins, agree.
Bird, dissents. J., I from dissent dissenting. Judge, respectfully
Sam Bird, I that the in this case because believe majority opinion the the was insufficient a matter evidence as by presented deceit, law to establish the tort of and that the trial court should motion for directed verdict. While I rec- have granted appellants’ review, the that it is our on to view evidence ognize responsibility, I that in the most favorable to the do not think our fight appellees, standard of review us to embellish the evidence draw- by permits inferences or conclusions from it that аre not it ing supported by are, best, at That what I believe that the or majority speculative. has done to affirm the verdict this case. straining jury’s “facts,” The as recited by majority, attempt portray sinister to steal business by plot appellees’ Stine, that Vera the trusted of the suggesting: (1) manager Sanderses’ and detective let the security company, deliberately its workers’ insurance so customers company’s compensation lapse elsewhere; would take their business that and Davis (2) Stine them, “induced” Sanders’s and to work for employees quit go and agree- prevented enforcing non-competition ments those against employees by taking away non-competi- tion and deceived the Stine Davis Sanderses agreements; (3) involvement; not them about their romantic (4) telling $120,000 Davis the Sanderses for their and agreed pay he did do and did let them that he since so not know was not so, them; to do he must have intended to deceive and (5) going was not in although alleged purchase agreement writing and, therefore, frauds, under the not enforceable statute of nonetheless, unenforceable recover, because can Sanderses deceitful. are discussed decision bases for the majority These five facts is that the reasoning with the majority’s below. The problem of them. do not law support Coverage Workers’ Compensation (1) Lapse of insurance coverage, the workers’ compensation Regarding Arkansas with the were that a facts disagreement undisputed carrier about the amount workers’ premiums compensation in an audit resulted of 1994 because a arose payroll prior August work on thе carrier to charge company premium attempt by Stine, as of Sanders’s in Louisiana. Ms. manager being performed entrusted testified in whom the Sanderses they company, the attempted premium full authority, disputed management *13 to infor- Louisiana and undertook assessment on payroll provide in a carrier that would result mation the insurance requested resolved, the was not lower When apparendy dispute premium. notice to sent a cancellation Shuffield) the carrier’s (Harris agent either said it was (Shuffield the Sanderses’ mid-August company would that 14 or 18), policy August informing company 1994, if the or about mid-September premium thirty days, lapse Don of these dates is that was not The appellant significance paid. to made with the Sanderses had not even contact inquire Davis fact, In the testi- sale at that time. about their business for being to that Davis first came and Davis was of both Sanderses mony not until 1994. It was from Dallas in mid-October Hot Springs Davis, followed, then, with the the weeks that that knowledge Sanderses, unrestricted with and consent of the provided clients, its its about the Sanderses’ profits, information tax liabilities. and its extensive motive to Ms. Stine’s handling
To attribute some evil have to one would workers’ premium dispute, compensation Davis, foresaw, that Don to that she August assume prior unaware, be then would arriving existence she was whose later, workers’ that the lack of compensation Dallas two months cause about would to have that she is brought insurance alleged clients to Stine Sanderses’ change security companies, and Davis would hatch a to tell the Sanderses Davis was plot to else from their business anyone going (presumably keep in order to them time to steal the Sanderses’ doing so) give away business crumbled customers and while Sanderses’ employees them. down around does,
To as the that Ms. Stine suggest, majority opinion secreted information from the Sanderses about the of their lapse workers’ insurance is compensation supported by any- simply in the record. The evidence is that the Sanderses thing undisputed had all control and of their busi- totally relinquished management ness to In their Ms. Stine. both and Frances testimony, Bucky Sanders conceded that all of the business were under the aspects Stine, not, absolute control of Ms. and that had for at least ten they to do or with years, anything management operation nor business. Neither Mr. Mrs. Sanders knew how many had, were, the business who its clients or how much employees made, it if after ten would have money any. Why, years, they from Ms. receive Stine about the status of expected report of the workers’ insurance payment compensation premium? with (2) Non-CompetitionAgreements Interference Enforcementof The also that Davis and Stine majority opinion suggests somehow, induced Sanderses’ and that employees quit, they, the Sanderses from documents prevented enforcing not to work secur- employees signed agreeing go competing There is no evidence in the record to ity companies. simply sup- this statement The evidence port by majority. only relating *14 kind of an Sanders’s was the any agreement signed by employees of Frances Sanders who that stated when an testimony employee Sanders, came to work for an that they signed agreement they would not to work Sanders’scustomers. Mrs. gо any Although of Sanders testified that we would have had the documents that “[i]f men, had been taken from the files of the then not would they Interstate,” have been able to to work for she offered no go expla- nation of how an Sanders’s not to to agreement employees go work for Sanders’s customers would have those prevented Interstate, to work for a which was never employees going of more than Sanders’s for- Not one of sixty Sanders customer. that ever signed was called to verify they any mer employees to work for companies. to competitor security agreement go whatsoever, con- evidence majority In the absence of any to it for Sanders have Security cludes that was “standard practice” an not to work for its execute competing employees firms. security Davis did was of or Stine to
There no evidence anything the Sanderses from whatever enforcing agreement they prevent their there was Fran- had with Although testimony by employees. had to locate ces not been able agreements they any no left there was evidence whatso- since Stine their employment, for the mis- ever to indicate that Davis or Stine was responsible of records. Cora was Although Maglero placement any employee be a the Sanderses’ to making observed by housekeeper large number of on her those removing copies computer copies car, there no her evidence suggesting employees’ of on the or that were agreements any company’s computer records were taken Cora Maglero. employee Involvement Romantic
(3) it, evidence to concludes Without majority any support that Davis and Stine became involved romantically during into that Davis was buying period looking possibility business, and that did not inform the Sanderses. Sanderses’ they of when Davis and became The uncontradicted evidence Stine himself, came from Davis who testified that involved romantically 1995, two he months after and Stine started January dating There is no the Sanderses’ business. Davis’s offer alleged buy this Further- in the record to contradict Davis on point. evidence earlier, more, as the con- even if the romance had begun majority cludes, fact how the failure to disclose the I do not see con- elements romance is relevant way prove any as to deceit. evidence was the tort of No presented any- stituting done had known the Sanderses would have differently they thing as to effect the No evidence was what the romance. presented or not busi- Davis’s decision buy romance on short, between Davis and existence of romance ness. In *15 Stine was more than a red rise nothing herring giving specula- tion, evidence, that, because their by any unsupported romance, must have to deceive Sanderses. the they conspired Business
(4) Buy Offer that The that the was in says justified majority jury believing $120,000. Davis I business agreed buy disagree.1 The evidence that Davis made an offer the busi- only buy ness for amount came from the mouth of Sanders. On any Bucky hand, the other the evidence Davis made that no offer was over- After the which November at (1) whelming: meeting made, claimed the one was Sanders told no but his agreement Frances; wife, (2) Karen Sanders was not told Daughter-in-law about the even she owned of the one-third agreement though was at the Sanderses’ home the office company present (where is also on the located) of the No effort day alleged (3) agreement; was reduce made to the terms of the agreement writing, that Sanderses’ was also his niece’s notwithstanding lawyer (who had been in their husband) involved efforts to sell the actively business; tendered, No earnest was was (4) nor there money any other act or conduct on the of either rise to an party giving part reached; inference an been that Davis could (5) the business because he did an legally not have Arkansas purchase license and resided had not for two investigator’s Arkansas years. There nowas evidence of motive that would Davis have any had to him deceive Sanders that he intended to by telling business when he did not to dо intend so. There no evidence of the existence of other business prospective purchasers That besides Davis. there were no other is corroborated prospects of the Sanderses’ testimony Marc who tes- lawyer, Honey, tified that Davis’s of the business was the Sanderses’ last purchase agree general majority While I with the principle espoused by weight given of witnesses and the to be to their are matters for credibility testimony jury, agree determination I do not court insulates principle appellate obligation, horn its where the have raised the issue, to review trial court’s whether the jury determination as to evidence was sufficient to submit the issue to the first place.
67 not did and that when Davis avoid to bankruptcy, opportunity but to file it, left no other alternative the were with Sanderses buy for bаnkruptcy. Contract the Enforceability
(5) of true, the enti- the was it as says, jury While is majority never this case should to the Sanderses’ testimony, tled believe con- two the (a) to the for reasons: oral alleged have jury gotten Frauds, tract, the of was unenforce- in violation of Statute being able; a merely the of (b) being alleged promise purchase, conduct, the a fraud not form basis of of future may promise claim. Statute of Frauds
(a) frauds, the
In its avoid the of statute of effort to consequence . it rule . . that the statute the decides that is the “better majority fraud the common-law of frauds does not abrogate remedy in writ- because the fraudulent was not merely misrepresentation undis- I that this is the better rule where it is might ing.” agree fact, was, one. in fraudulent puted representation However, in a called “better rule” should be used this so tо of deceit action as a vehicle avoid the necessity proving an Under the elements deceit. theory majority opinion, held virtue could be to have falsely promised alleged promisor he not do what he denies that ever of the fact that he did promised that, in holds to do. this circuitous By majority reasoning, false Davis made a knowingly whether determining representation Davis’s to infer that to Sanders’s buy jury permitted the fact did not the business. from that Davis buy false promise damages Davis and Stine are compelled pay Consequently, been that he could not have Davis did not business buy because first buy legally compelled place. Rose, 820, Ark. 536 S.W.2d cites Betnar
The majority
No.
206 Ark.
Bolin v.
District
(1976),
Drainage
(1943),
proposition
In the case at if Davis had to the paid any money Sanderses in for partial Sanders’s payment I security would that the agree announced in Bolin, Betnar principles would supra, him from prevent on the statute of relying frauds as the basis of an action for the of his down recovery payment. However, I do not that Betnar and agree Bolin render the other- wise unenforceable contract enforceable Sanders by merely because Davis did not do what Sanders said that he to promised do. That is of exactly intended type to be avoided the statute of frauds. (b) Promise of Future Conduct In Tee, cases of citing Golden Inc. Venture Schools, Golf
Inc., 333 Ark. 969 S.W.2d 625 (1998), Undem v. First Bank, 451 (1994), 879 S.W.2d 46 Ark. National App. to be that law in Arkansas promise recognizes majority fraud deceit for a claim of or form basis future conduct cannot at knew the false it is that the making prоmise unless shown party true the be Even as it would not accepting the time that kept. his business buy Sanders Davis agreed testimony Bucky $120,000, no that Davis made there is evidence simply not it. What that he did intend possible keep knowing promise that he was Davis had to going motive could have promise no reason for him that there was absolutely to do something out, other there no evidence of As I have was already do? pointed There in line to the business. standing buy prospective purchasers had to no that Davis and Stine gain evidence anything for their business. the Sanderses amount offering money Davis’s The that an inference of intent majority suggests Davis be from the evidence that: (a) could drawn perform business; on without (b) notifying November 4 agreed 9; Sanderses, and (c) he formed a rival business on November taken and business records were destrоyed the Sanderses’ wrongly *18 and hinder further the formation of the rival business to As to the remedial measures. major- Sanderses from taking timely further this I will not opinion except ity’s (a), lengthen point from lack of of an out the logic inferring again point complete act he he did not failure to an says promisor’s perform alleged act. did intend to As point that he not perform promise, know- it is infer that Davis made as (b), just illogical promise it, he the fact that did that he not intend to did perform ing that he he not act the Sanderses that would perform not notify Furthermore, there was maintains he never promised perform. five during days evidence of Davis advantage gained by no any on November the date the alleged between promise 9. on November Davis’s formation a new business security that could the formation of new business therе about What the Sanderses’ have been done had Davis not not promised As to the as (c), already five earlier? business days majority’s point discussed, or Stine offered that either Davis- there was no evidence records; evi- nor was there any or of Sanders’s took destroyed any of those records prevented dence of how the displacement enforcement was, corrective measures. There however, abundant that if evidence Sanders did sell his quickly someone, business to it would be out of business the end of the and that what year; exactly happened. above,
For the I reasons stated would reverse and dismiss this case. METCALF and Garry Warren John
TEXARKANA SCHOOL DISTRICT
98-800;
CA
Court of Arkansas Appeals
Division II delivered March Opinion *19 Firm, Roachell, Roachell Law Richard W. by: appellants. Lavender, PLC, & Barnette, Lavender; Rochelle G. William by: Blume, and W. Paul for appellee. cases, In each of these two Judge.
Sam Bird, Metcalf Garry Warren dismissal of appeal John their Miller to the Circuit Court under appeals County