Bft Rental, LLC v. Arkansas State Highway Commission

Cite as 2026 Ark. App. 73
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-24-488

Opinion Delivered February 4, 2026

BFT RENTAL, LLC
APPELLANT APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. 72CV-23-1131]

ARKANSAS STATE HIGHWAY HONORABLE WILLIAM MARTIN,
COMMISSION JUDGE
APPELLEE
AFFIRMED

MIKE MURPHY, Judge

Appellant BFT Rentals, LLC, appeals the denial of its motion for new trial. BFT

owned a piece of property running along Highway 112, which was condemned by the

Arkansas Highway Department through eminent domain as part of a highway-widening

project. We affirm.

The issue at trial was how much money to award BFT as just compensation. Before

trial, the Commission deposited $1,480,513 into the registry of the court, representing what

the Commission believed to be just compensation for the taking.

I. Summary of Trial and Procedural Posture

At trial, the jury heard testimony from Jessica Hester, an architect with Verdant

Studio, who was hired by BFT. She had started working on the project for BFT in October
2021 to create a master plan for its sixty-five-acre site, and she worked with the City of

Fayetteville to get four parcels rezoned. The rezoning was obtained in April 2022 and allowed

the land to be used for mixed-use development, “so it has both commercial and residential

by-right applications inside of it . . . intended to create space that services the adjacent

community.” She did not know the value per square foot or per acre.

BFT then called Jeff Pederson, a commercial real estate broker. Pederson testified that

he visited the site and prepared a listing-price opinion for the property in June 2022. He

explained that commercial real estate pricing is typically expressed in dollars per square foot,

and on the basis of his analysis, he valued the property at approximately $20 per square foot.

He said that this figure was “conservative” considering the market in the area. Pederson used

an income approach to valuation and supported his opinion with exhibits showing

comparable pricing for raw land at $20 per square foot.

Lee Autrey testified next. He was vice president of sales for a company owned by the

same owners of BFT. He testified that the owners valued their land at $20 per square foot.

He said he was not a real estate professional. BFT then rested.

The Highway Commission called one of its engineers to explain the Highway 112

project and introduced some aerial views of the property. It then called Jason Crump, a

registered licensed and certified appraiser. The company he was working for at the time, JLL

Evaluation Advisor Services, was contracted by the department of transportation in 2022 to

provide appraisal services for the Highway 112 project. He discussed his qualifications,

2
employment history, and experience and then explained how he went about valuing the land

at issue for his appraisal:

So we take a look at the subject, how it’s being impacted, and work through the
process of -- of in this case using the sales comparison approach where we go out into
the market. If you’ve had your home appraised, you kind of know the process. You
go out in the market and try to find homes that are similar to yours and put a number
on it. That’s what we did with this acreage tract.

Crump was qualified as an expert without objection. He discussed some of the elements of

the BFT tract and said, “It is in the path of [ ] what I would consider the future growth of

Fayetteville.” He testified about a tract right around the corner from the subject property. It

was similarly zoned, thirty-six acres, and the highway department acquired it for $3.50 per

square foot in 2022. He testified about another comparable property, albeit in Springdale,

but similar in nature, that sold for $1.72 per square foot in June 2022. A third property he

used sold for $2.00 per square foot in 2021. He testified that he calculated just compensation

to BFT for the property to be $1,480,513, which included $6460 in compensation for a

temporary easement to perform the work on the property. Crump said that amount comes

to “a little less than $3 a square foot” for the land purchased, and that calculation still

reflected his expert opinion today. He did not agree with Pederson’s valuation because “[t]his

property is not there yet . . . from a market standpoint,” and that a developer would not

currently buy the land at the price that Pederson recommended because the infrastructure is

not currently there. And while he acknowledged that he had “no doubt” that some properties

in Fayetteville are going for $15 to $16 a square foot, “I just don’t see it for [ ] this tract . . .

there’s not the residential mix there yet. It’s coming. It’s not there.”

3
At the conclusion of the evidence, counsel and the court worked through jury

instructions. Relevant here, the following were read to the jury:

Instruction Number 10. In arriving at the amount of just compensation to which BFT
Rental, LLC is entitled, you first determine the fair market value of the whole
property immediately before the taking, and then you determine the fair market value
of the remaining property immediately after the taking. The compensation BFT
Rental, LLC is entitled to recover is the difference, if any, between the fair market
value of the whole property immediately before the taking and the fair market value
of the remaining property immediately after the taking.

In determining the fair market value of the remaining property immediately after the
taking, you should consider the remaining property as if the Arkansas State Highway
Commission’s project was completed and permanently in place according to the
construction plans now on file.

Instruction Number 11. When I use the expression fair market value, I mean the
amount of money which a purchaser who is willing but not obligated to buy the
property would pay to an owner who was willing but not obligated to sell it, taking
into consideration all uses to which the land is adapted and might reasonably be
applied. Fair market value is not necessarily based on the use to which the property
was being put at the date of the taking, but is to be based on the fair market value of
the land put to its highest and best use.

....

Instruction 16. BFT Rental, LLC also seeks just compensation for a temporary
construction easement taken by the Arkansas State Highway Commission. The
amount of just compensation for a temporary construction easement is the fair rental
value of the property within the easement area for the time – or excuse me -- for the
period of time it was or will be used.

The jury retired for deliberations. During deliberation, a note was sent out that stated,

“Do we have to choose one of the proposed amounts or set our own per square foot

amount?” Counsel for the highway department said they could set their own amount, and

counsel for BFT agreed. The court said, “So can I say, ‘No, you do not have to choose one

4
of the proposed amounts, you may set your own per square foot amount?’” Counsel for both

parties agreed.

The jury rendered the following verdict: “We the jury find and fix just compensation

for Tract 9 and easements on 9E-1, 9E-2, 9E-3, and 9E-4 to be awarded defendant BFT

Rental, LLC, et al, at $3.50 per square foot.”

The jury was dismissed, and the court and counsel for both parties discussed on the

record what amount that value per square foot calculated to when multiplied over the total

acreage condemned. They arrived at $1,744,155, and counsel for BFT was asked to prepare

the precedent. The court acknowledged that their math at the bench might not be exact and

tasked counsel to work together to make sure the final judgment reflected a correct dollar

amount.

The final judgment was entered on February 26, 2024, and was signed as approved

to form by counsel for both parties. It set out the land to be condemned by metes and bounds

and recited the jury verdict verbatim.

The judgment went on to provide that

[t]he verdict was unanimous, and signed by all 12 jurors including the foreman, in
proper form, and accepted by the Court. The Verdict reads at $3.50 per square foot.
All attorney’s present agreed this award was based on a total square footage of 498,330
square feet. This brings the total awarded by the Jury to $1,744,155.00, which was
read into the record.

On March 7, 2024, BFT filed its motion for new trial. In that motion, BFT explained

that it was wrong for counsel to calculate the final judgment amount because that was a task

for the jury. The motion further explained that the jury was also not correctly instructed

5
because it returned a verdict for the land acquired but was silent regarding compensation for

the temporary-construction easements. BFT asserted that the verdict was contrary to law,

there was error in the assessment of the amount of recovery, and there was an irregularity in

the proceedings that prevented it from having a fair trial.

The motion for new trial was deemed denied on April 8, 2024. The time for filing a

notice of appeal ran on May 8. BFT filed its notice of appeal on May 6 designating “the order

entered April 8, 2024, denying the Defendant’s motion for new trial.” BFT then filed an

amended notice of appeal on May 9. The amended notice provided that the denial was

actually not through order but by operation of law.

On appeal, BFT argues that the circuit court erred when it denied its motion for new

trial.

II. Appellate Jurisdiction

The Highway Commission argues on appeal that BFT’s amended notice of appeal was

untimely and somehow changed the standard of review.

Rule 4 of the Arkansas Rules of Appellate Procedure–Civil outlines the time frames

and conditions for filing a notice of appeal. Generally, a notice of appeal must be filed within

thirty days from the entry of the judgment, decree, or order appealed from. However, Rule

4(b) provides that when a motion for new trial under Arkansas Rule of Civil Procedure 59(a)

is filed within ten days of the entry of the judgment, if that motion is neither granted nor

denied within thirty days of its filing, then the motion is deemed denied on the thirtieth day.

6
Appellants then have thirty days from the date the motion is deemed denied to file their

notice of appeal. Ark. R. App. P.–Civ. 4(b)(b)(1).

This is what BFT means when it provided in its amended notice of appeal that it was

from the denial that occurred by operation of law. The Commission asserts that this

amended notice of appeal is “an improper attempt to alter the Court’s standard of review

regarding the denial of the Motion for New Trial from ‘abuse of discretion’ to ‘de novo.’”

The amended notice of appeal was not an attempt to change the standard of review. The

Commission likely draws its confusion from the fact that this court reviews issues of law de

novo. State v. Cassell, 2013 Ark. 221, 427 S.W.3d 663.

Nor was the original notice of appeal untimely. Rule 3(e) of the Arkansas Rules of

Appellate Procedure–Civil provides that a notice of appeal shall “designate the judgment,

decree, order or part thereof appealed from.” Ark. R. App. P.–Civ. 3(e)(ii). While the filing

of a notice of appeal is jurisdictional, our supreme court has required only substantial

compliance with the procedural steps set forth in Rule 3(e). Emis v. Emis, 2017 Ark. 52, at 3,

508 S.W.3d 886, 887–88. The supreme court has held that a notice of appeal that fails to

designate the judgment or order appealed from as required under Rule 3(e) is deficient, but

such a deficiency is not necessarily fatal to the notice of appeal when it is clear which order

the appellant is appealing, and the notice of appeal was filed timely as to that order. Emis,

supra. Here, it is clear that BFT is appealing the denial of its motion for new trial. The fact

that the notice said “order” instead of “operation of law” is not fatal.

III. Discussion

7
BFT asserts on appeal that it is entitled to a new trial pursuant to Arkansas Rule of

Civil Procedure 59(a)(1), (a)(5) and (a)(6), which provides in pertinent part that a new trial

may be granted when there is an “irregularity in the proceedings . . . by which the party was

prevented from having a fair trial,” “error in the assessment of the amount of recovery,

whether too large or too small,” or “the verdict or decision is clearly contrary to the

preponderance of the evidence or is contrary to the law.” BFT argues there are four

independent reasons why it was erroneous for the circuit court to deny its motion: first, the

jury used an improper method to determine just compensation; second, the $1,744,155 sum

was set by counsel and the court, and not the jury; third, the jury erred in assessing

compensation and lacked sufficient evidence to support its determination; and fourth, the

judgment did not include compensation for the temporary-construction easements.

A motion for new trial is addressed to the sound discretion of the circuit court. In re

GNB III Tr., 2019 Ark. App. 171, at 6, 574 S.W.3d 159, 163. We will not reverse a circuit

court’s refusal to grant a motion for new trial unless an abuse of discretion is shown. Id. An

abuse of discretion means a discretion improvidently exercised, i.e., exercised thoughtlessly

and without due consideration. Id. When evaluating the denial of a motion for new trial

under Rule 59(a)(6), we will affirm if the circuit court’s decision is supported by substantial

evidence. Brantley v. Nw. Ark. Hosps., LLC, 2014 Ark. App. 275, 435 S.W.3d 1.

BFT’s first, second, and fourth points may be addressed together.

Absent evidence to the contrary, the jury is presumed to obey the court’s instructions.

KW-DW Props., LLC v. Ark. State Highway Comm’n, 2019 Ark. 95, at 6, 571 S.W.3d 6, 9. BFT

8
makes no argument that the jury was incorrectly instructed. And when the jury asked for

clarification, BFT counsel agreed that the court may instruct the jury that it may set out a

“per square foot amount.” Accordingly, even if the jury did use an improper method, which

we decline to address, under the doctrine of invited error, BFT may not now argue that this

calculation method was somehow so deficient a new trial is warranted. Under the doctrine

of invited error, parties may not propose a particular approach to calculating damages and

then challenge it on appeal. J.I. Case Co. v. Seabaugh, 10 Ark. App. 186, 189, 662 S.W.2d

193, 195 (1983).

BFT states that the jury did not return a verdict, it returned a math problem, requiring

those outside the jury to speculate as to the result the jury sought to achieve. This flows into

BFT’s second point, which was that it was improper for the court and counsel to arrive at a

final dollar amount, and not the jury. But the time to correct a verdict on a claim that the

jury misunderstood the instructions is before the jury is discharged. BFT did not submit

interrogatories or poll the jury; in fact, it proceeded to participate in the discussion of how

many acres to which the verdict formula would apply and the final amount for the court to

put in the judgment.

It is well established that the failure to object to some irregularity in a verdict before

the discharge of the jury constitutes a waiver of that irregularity. Fisher v. Valco Farms, 328

Ark. 741, 745, 945 S.W.2d 369, 371 (1997). To the extent that BFT claims there were

irregularities in how the jury arrived at its $3.50-per-square-foot sum or what that meant, the

time to correct or clarify the verdict was before the jury was discharged. Id. And to the extent

9
that BFT argues that it was improper for the court and counsel to use that figure to calculate

the final amount, its arguments are waived by virtue of acquiescing to the action. KW-DW

Props., LLC, 2019 Ark. 95, at 8, 571 S.W.3d at 11.

BFT’s fourth argument on appeal is that the judgment does not contain

compensation for imposition of the temporary-construction easements; however, the jury

verdict clearly states that the award of $3.50 per square foot was for the acquisition in fee

“and easements on 9E-1, 9E-2, 9E-3, and 9E-4.” (Emphasis added.)

Finally, we address BFT’s argument that the jury erred in finding just compensation

because there was no sufficient evidence to support its determination. BFT couches this as

an Arkansas Rule of Civil Procedure 59(a)(5) argument, because it argues the jury erred in

the assessment but pairs it with the argument that there was no sufficient evidence to support

the jury’s determination. There is no substantial-evidence element within Rule 59(a)(5), but

there is one in subdivision (a)(6). Regardless, to the extent that BFT does challenge the

evidence, we note that when a circuit court denies a motion for a new trial on the ground

that the verdict was not clearly contrary to a preponderance of the evidence, the test on

appeal is whether there is substantial evidence to support the jury verdict. Id. In such

instances, we must view the evidence in the light most favorable to the party against whom

the motion was made and must affirm if there was any substantial evidence to support the

verdict. Id. Substantial evidence is evidence that is of sufficient force and character to compel

a conclusion one way or another. Id. It must force the mind to pass beyond suspicion and

conjecture. Id.

10
Substantial evidence supports the award of $3.50 per square foot, such that it was.

The Commission’s expert testified to comparable properties that sold between $1.72 and

$3.50 per square foot. He estimated the BFT land to be “a little less than $3 a square foot.”

Accordingly, the award of $3.50 per square foot is not an arbitrary figure and could

reasonably include an amount representing the temporary easements. Any remaining errors

in the verdict, if there were any, resulted from either invitation or consent.

To be clear, Rule 59(a)(5) error-in-assessment claims do not require preservation

through directed-verdict motions and cannot be waived merely by failing to object earlier in

the proceedings, Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 288 (1991),

but there is a difference between failing to object and active participation. Compare Fisher,

supra, with Gray v. Moreland, 2010 Ark. App. 207, 374 S.W.3d 178. In Gray, we held that the

appellant waived his challenge to the damages amount on appeal because during jury

deliberations, when the jury asked for “the dollar amount that each party is asking for,” the

appellant’s trial attorney affirmatively indicated he had no objections to the specific $9,385

amount requested by the opposing party. 2010 Ark. App. 207, at 6, 374 S.W.3d at 182, By

consenting to communicate that specific figure to the jury without objection, the appellant

invited any error in that damages assessment and could not later challenge it under Rule

59(a)(5).

Affirmed.

KLAPPENBACH, C.J., and VIRDEN, J., agree.

Tona M. DeMers and Robert S. Tschiemer, for appellant.

11
Stephen P. Lowman, for appellee.

12