Smith v. Orsbun

Cite as 2024 Ark. App. 330
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-22-371

Opinion Delivered May 22, 2024
DARRELL SMITH, JR., SUCCESSOR
TRUSTEE OF THE SMITH FAMILY APPEAL FROM THE CRAWFORD
TRUST; AND COLE SMITH, COUNTY CIRCUIT COURT
EXECUTOR OF THE ESTATE OF [NO. 17CV-21-92]
DARRELL SMITH, SR., DECEASED
APPELLANTS/CROSS-APPELLEES HONORABLE CANDICE A. SETTLE,
JUDGE

V.

TERRY ORSBUN AND CHRISTINE
ORSBUN AFFIRMED ON DIRECT APPEAL;
APPELLEES/CROSS-APPELLANTS AFFIRMED ON CROSS-APPEAL

RITA W. GRUBER, Judge

This interlocutory appeal arises out of a real-estate-transaction dispute concerning a

house and approximately three acres located in Crawford County. Appellants are Darrell

Smith, Jr., successor trustee of the Smith Family Trust (the Trust); and Cole Smith, executor

of the estate of Darrell Smith, Sr., deceased (the Estate). Appellees are a married couple,

Christine and Terry Orsbun. Appellants bring this appeal from (1) the February 18, 2022

rulings denying their motions for directed verdict; (2) the March 18, 2022 order and

judgment and the April 19, 2022 amended order and judgment; (3) the May 16, 2022 order

awarding attorney’s fees and costs; and (4) the May 27, 2022 order of contempt.

Appellants state five points on appeal with multiple arguments in support of each.

However, we address their points and arguments in three broad categories: contract
formation and enforcement, attorney’s fees, and contempt. Appellants contend that the

contract they were ordered to specifically perform was not properly formed and cannot be

enforced—raising issues of merger, parol evidence, the statute of frauds, lack of a meeting

of the minds, lack of consideration, standing, and impossibility of performance. Appellants

also take issue with the attorney’s fees and costs awarded to appellees as well as the contempt

finding made against them and the accompanying daily penalty. On cross-appeal, appellees

contend that the circuit court erred by not awarding them an equitable credit for the

deprivation of the use of the at-issue property. We affirm.

I. Background

On March 15, 2021, appellees filed suit against appellants and Darrell, Smith Jr.,

individually (Smith Jr.).1 Appellees alleged that a contract existed between them, the Trust,

and Darrell Smith, Sr. (Smith Sr.), for the sale of the at-issue property in exchange for

$291,000. The at-issue property consists of a house and the one acre upon which it sits (the

house property) and an adjacent and additional approximate two acres (the bluff property).

Prior to Smith Sr.’s death, the house property was owned by the Trust, of which Smith Sr.

was the sole trustee, and the bluff property was owned by Smith Sr. personally. Appellees

further alleged that the contract was comprised of three documents: the residential “Real

Estate Contract” (REC), the “Seller’s Counter to the Real Estate Contract” (counter), and

the “General Addendum” (GA) with the referenced survey portion attached. The REC,

counter, and GA were attached to the complaint. Appellees claimed that the contract was

breached on February 22, 2021, when appellants and Smith Jr. failed to close on the sale of

1
Smith Jr. was dismissed as a party from the lawsuit on April 8, 2021.

2
the house property and the bluff property. Appellees requested that the circuit court order

the specific performance of the contract and award additional damages caused by the delay

of the closing as well as attorney’s fees and costs.

On April 5, 2021, the Trust answered appellees’ complaint, asserting that any

contract that existed was between only it and appellees and was for the sale of the house

property only in exchange for the $291,000. On April 19, the Estate answered appellees’

complaint, denying that it was a party to the contract and further denying that the bluff

property was subject to the contract that existed between appellees and only the Trust. On

August 11, appellants filed a third-party complaint against Chuck Fawcett Reality, Inc.

(Fawcett Realty); Linda Black, as an agent and employee of Fawcett Realty; and Tammy

Best, as an agent and employee of Fawcett Realty (collectively the Fawcett parties).2 On

September 1, the Fawcett parties filed a counterclaim against appellants.

A bench trial was held on February 17 and 18, 2022. Appellees introduced twenty-

three exhibits as well as the testimony of realtor Tammy Best (twice); professional land

surveyor Ricky Hill; certified general real estate appraiser Angela Hartwig; real estate broker

and owner of Chuck Fawcett Realty, Inc., Chuck Fawcett; BHC Insurance customer-

service representative Jill Swad; roofer Tyler Reeves; Eddie Tunchez with ET Construction;

Terry Orsbun; Smith Jr.; and real estate broker James Vitale. Appellants then moved for

directed verdict multiple times, making the same arguments they do on appeal, and each

motion was denied in turn. Appellants then put on their case-in-chief, introducing fourteen

exhibits and the testimony of Tina Stephenson, closing department manager at Waco Title;

2
The Fawcett parties are not parties to this appeal.

3
Tracy Wilhelm, a mortgage loan supervisor with Arvest Bank; James Vitale, real estate

broker; Linda Black, a real estate agent with Chuck Fawcett Realty, Inc.; and Sandra Hiener,

Crawford County tax assessor. Appellants renewed their motions for directed verdict, which

were denied. The parties gave closing arguments, and the court requested proposed findings

of fact and conclusions of law from the parties.

On March 9, 2022, the circuit court issued a letter to the parties setting out its rulings

and directing appellees’ counsel to prepare the order and judgment, including proposed

findings of fact and conclusions of law that support the court’s decision. On March 10,

proposed findings of fact and conclusions of law were submitted by both appellants and

appellees, to which appellants objected on March 16.

On March 18, 2022, the circuit court’s order and judgment with findings of fact and

conclusions of law was entered. The court concluded that a contract existed that was

comprised of the REC, the counter, and the GA; that the contract satisfied the statute of

frauds; and that the contract was for the sale of the house property and the bluff property in

exchange for $291,000, which did not evidence a lack of consideration. The court found

that there were two sellers—the Trust and Smith Sr.—and the contract was binding on

appellees, the Trust, and Smith Sr. (now the Estate). The court did so having found that the

counter delineated “Smith Family Trust / Darrel Smith” as the seller; that Smith Sr. was the

trustee of the Trust; and that Smith Sr. signed the counter but did not designate any specific

capacity in which he was signing.

The court further concluded that the death of Smith Sr. did not affect the material

terms of the contract but rather the manner in which the contract had to be executed. The

4
court found that Smith Jr., as the successor trustee of the Trust, was authorized to act on

behalf of the Trust if Smith Sr. was not able to do so; that prior to Smith Sr.’s passing, a

valid power of attorney (POA) existed permitting Smith Jr. to transfer real estate on behalf

of Smith Sr.; and that Smith Jr. signed the GA prior to Smith Sr.’s death, as evidenced by

documents entered into evidence. The court also found unpersuasive appellants’ argument

regarding an unsatisfied condition precedent with respect to the appraisal value of the

property and appellees’ financing. The circuit court concluded that appellants had breached

the contract by refusing to close the transaction. The court ordered appellants to specifically

perform the contract by conveying the house property and the bluff property for the

purchase price, less equitable credits for $22,929.61 in repairs to the house; $1416 in storage

fees; $12,000 in rent; and $2400 in moving expenses. The order denied appellees’ request

for an equitable credit due to the deprivation of the use of the property. The court further

ordered that closing occur not more than twenty-one days after the entry of the order and

judgment.

On March 30, 2022, appellees filed a motion requesting $49,027.50 in attorney’s fees

and $1920 costs, a total of $50,947.50, to which appellants responded. On April 14, appellees

filed a motion to show cause, setting out that despite the court’s March 18, 2022 order to

close the real estate transaction within twenty-one days of entry of that order—April 8—

appellants refused to do so at the scheduled April 5 closing.

On April 15, 2022, appellants filed their first notice of appeal setting out that they

were appealing the March 18, 2022 order and that the appeal was interlocutory and being

5
taken pursuant to Ark. R. App. P.–Civ. 2(a)(6).3 That same day, appellees’ counsel sent a

letter to the court requesting a Rule 54(b) certification and submitting a new proposed

order. On April 19, the order granting the motion to show cause was entered, ordering the

Trust and the Estate to appear before the court on May 9 to show cause why each should

not be held in contempt of court. Also on April 19, an amended order and judgment was

also entered, which was substantively identical to the March 18, 2022 order and judgment

except for the addition of the Rule 54(b) certificate. Appellants objected to the amended

order on April 19.

On April 21, 2022, the Estate responded to appellees’ motion to show cause,

admitting its refusal to close but arguing that it had filed a notice of interlocutory appeal and

had objected to the requirement that the closing occur within twenty-one days. It

contended that the circuit court did not have the authority to remove Cole Smith as the

executor of the Estate and that the order and judgment entered by the court was not a final,

appealable order; thus, the circuit court could not enforce it pending resolution of the third-

party claims involving the Fawcett parties. The Estate requested for the first time that the

matter be stayed during the pendency of the appeal. That same day, the Trust responded to

appellees’ motion to show cause, contending that the court did not have the authority to

3
This subsection permits an interlocutory appeal regarding injunctive relief, and the
order and judgment stated that appellees were “entitled to a mandatory injunction requiring
[the Trust and the Estate] . . . to specifically perform the contract.” Moreover, appellees
characterized their request for specific performance as a “mandatory injunction.” However,
specific performance is its own kind of relief, separate and apart from injunctive relief. See,
e.g., Hyde Vending Co. v. Wayne Poultry Co., 252 Ark. 355, 361, 479 S.W.2d 250, 255
(1972); McDaniel v. Orner, 91 Ark. 171, 173, 120 S.W. 829, 830 (1909). This distinction
does not affect our analysis.

6
remove Smith Jr. as the trustee of the Trust; its other arguments were identical to those

made by the Estate in its response.

On May 12, 2022, appellees filed an amended motion to show cause regarding

appellants’ refusal to close the real estate transaction per the court’s order. On May 16, an

order was entered awarding appellees $32,500 in attorney’s fees and $520.50 in costs. On

May 27, the order of contempt and for supersedeas bond was entered, the court having

found appellants in contempt for failing to comply with its order to close or seeking a stay

in a timely manner. That order mandated that appellants pay a daily fine of $250 for their

contempt until a supersedeas bond was posted or a closing occurred. Appellants’ request for

stay was granted conditioned upon their posting a $50,000 supersedeas bond.

On August 3, 2022, appellants filed a motion to stay enforcement of judgment and

remission of daily penalties with this court, requesting that we stay the order of contempt

and thus stop the accrual of any further penalties. On August 5, appellees responded to that

motion, contending that the motion was unnecessary given the plain language of the circuit

court’s contempt order and the posting of the bond. Appellees further responded that this

court had no authority to forgive any of the already accrued penalties. On August 24, 2022,

we granted appellants’ request to stay the enforcement of the judgment and passed the

request for remission of the daily penalties until the case is submitted.

II. Direct Appeal

We now address appellants’ points and arguments in three broad categories: contract

formation and enforcement, attorney’s fees, and contempt. Where land is the subject of an

agreement, a party to the agreement is entitled to specific performance. Elder Constr. Co. v.

7
Ivey Lane, LLC, 2010 Ark. App. 10, at 7, 370 S.W.3d 861, 865. Specific performance is an

equitable remedy that compels performance of a contract on the precise terms agreed upon

by the parties. Id. at 3, 370 S.W.3d at 864. Because specific performance is grounded in

equity, circuit courts “have some latitude of discretion in granting or denying that relief,

depending upon the inequities in a particular case.” Flippen v. Jones, 2011 Ark. App. 191, at

6, 382 S.W.3d 695, 698. We review equity cases de novo on the record but will not reverse

a finding by the circuit court unless it is clearly erroneous. Elder Constr. Co., 2010 Ark. App.

10, at 4, 370 S.W.3d at 864. Whether specific performance should be awarded in a particular

case is a question of fact for the circuit court. Id. On appeal, the question before us is whether

the court’s decision to grant specific performance was clearly erroneous. Id. In reviewing

the circuit court’s findings of fact, we give due deference to the circuit court’s superior

position to determine the credibility of witnesses and the weight to be accorded to their

testimony. Id.

In civil bench trials, the standard of review on appeal is whether the circuit court’s

findings were clearly erroneous or clearly against a preponderance of the evidence. Peregrine

Trading, LLC v. Rowe, 2018 Ark. App. 176, at 1, 546 S.W.3d 518, 520. A finding is clearly

erroneous when, although there is evidence to support it, the reviewing court, on the entire

evidence, is left with a firm conviction that a mistake has been committed. Id. at 1–2, 546

S.W.3d at 520.

A. Contract Formation and Enforcement

Appellants’ first and second points on appeal take issue with the circuit court’s oral

rulings as well as the order and judgment determining that an enforceable contract existed

8
for the sale of the house property and the bluff property. Specifically, appellants contend

that the circuit court erred in denying their motions for directed verdict and in entering

judgment for appellees because no enforceable contract was formed. In support of that

contention, appellants argue that (1) negotiations do not create a contract and are merged

into the final document; (2) the terms were certain that there was no additional acreage, so

parol evidence may not add to them; (3) there was no meeting of the minds; (4) the statute

of frauds bars unsigned additions to the document; (5) impossibility of performance bars the

claims; and (6) even if the parties later agreed to add realty, there was no additional

consideration paid. Appellants’ second point on appeal is that there was no contract because

appellants lacked standing to sell the property.

In a civil bench trial, we treat a defendant’s motion for “directed verdict” as a motion

to dismiss. Phillips v. Denton, 2018 Ark. App. 90, at 5, 543 S.W.3d 508, 511; see also Ark.

R. Civ. P. 50. In determining whether such a motion should have been granted, we review

the evidence in the light most favorable to the nonmoving party, giving the evidence its

highest probative value, taking into account all reasonable inferences deducible from it.

Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). The

motion should be granted only if there is no substantial evidence to support a verdict in the

nonmoving party’s favor. Id. When the evidence is such that fair-minded persons might

reach different conclusions, then a factual question is presented, which requires reversal. Id.

The standard is the same in a bench trial where the court acts as the fact-finder. Peregrine

Trading, LLC, 2018 Ark. App. 176, at 15, 546 S.W.3d at 527.

9
On this record, there was certainly substantial evidence to move beyond the motion-

to-dismiss stage. And ultimately, as discussed more fully below, each point appellants raise

to attack the validity of the contract is meritless. As an initial issue, the cases cited by

appellants merely set forth our standards regarding contract formation and enforcement and

do not support their specific arguments. The essential elements of a contract are competent

parties; subject matter; legal consideration; mutual agreement; and mutual obligation. Terra

Land Servs., Inc. v. McIntyre, 2019 Ark. App. 118, at 12, 572 S.W.3d 424, 432. A court

cannot make the parties’ contract but instead can only construe and enforce the contract the

parties have made. Id. There must be a meeting of the minds using objective indicators to

have a valid contract. Id. Whether there is a meeting of the minds is a question of fact. Id.

Whether a binding contract exists is a question of law. Smith v. Prudential Prop. & Cas. Ins.

Co., 340 Ark. 335, 336, 341, 343, 10 S.W.3d 846, 847, 850 (2000). The words in a

document must be construed as written, using ordinary meanings. First Nat’l Bank of Crossett

v. Griffin, 310 Ark. 164, 169, 832 S.W.2d 816, 819 (1992).

The parol-evidence rule prohibits the introduction of extrinsic evidence that is

offered to vary the terms of a written agreement; it is a substantive rule of the law, and its

premise is that the written agreement itself is the best evidence of the intention of the parties.

Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. 461, at 11, 448 S.W.3d 696, 703. On the other

hand, the parol-evidence rule does not prohibit the introduction of extrinsic evidence if it

would aid the court in interpreting the meaning of particular language of a contract. Id. Nor

does the parol-evidence rule prohibit the court’s acquainting itself with the circumstances

surrounding the making of the contract. Id. at 11–12, 448 S.W.3d at 703. On appeal, we

10
will not reverse the circuit court’s ruling on the admission of evidence absent an abuse of

discretion. Id. at 12, 448 S.W.3d at 703. Abuse of discretion is a high threshold that does

not simply require error in the circuit court’s decision but requires that the circuit court act

improvidently, thoughtlessly, or without due consideration. Id.

To be enforceable, a contract for the sale of land must comply with the statute of

frauds, Arkansas Code Annotated section 4-59-101. Boensch v. Cornett, 267 Ark. 671, 673–

74, 590 S.W.2d 55, 56–57 (1979). This requires the memorandum to be in writing, to be

signed by the party to be charged or signed by some other person properly authorized by

the person sought to be charged, and to contain all the essential terms. Id. A description of

the land to be conveyed is an essential term. Id. While extrinsic evidence may not be used

to add to or change a deficient description, it may be used to decipher or make intelligible

the terms of the contract or clarify the description of the land. Id. The meaning of the

description becomes plain and certain when the circumstances surrounding the negotiations

and writing are disclosed. See, e.g., Boensch, supra.

The law of impossibility has evolved into a broader and more equitable rule of

impracticability. Smith v. Decatur Sch. Dist., 2011 Ark. App. 126, at 4–5. Impracticability of

performance may excuse a party from performing contractual obligations. Id. The burden

of proving impossibility of performance rests upon the party alleging it. Id. It must be shown

that virtually every action within the person’s power to perform the duty under the contract

was taken and that the thing to be done cannot be effected by any means. Id. Resolution of

the question requires an examination into the conduct of the party pleading the defense to

determine the presence or absence of fault on his part in failing to perform. Id. Our supreme

11
court has drawn a distinction between objective impossibility, which amounts to saying “the

thing cannot be done,” and subjective impossibility, “I cannot do it.” Id. It is only in cases

of objective impossibility that performance is excused. Id.

The question of standing is a matter of law for this court to decide, and this court

reviews questions of law de novo. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark.

121, at 9, 388 S.W.3d 24, 31. Whether an agent is acting within the scope of his actual or

apparent authority is a question of fact for the fact-finder to determine. Found. Telecomms.,

Inc. v. Moe Studio, Inc., 341 Ark. 231, 240, 16 S.W.3d 531, 537 (2000).

Against these many standards, we are not left with a firm conviction that the circuit

court made a mistake or abused its discretion. First, the circuit court did not err in finding

that the contract consisted of three written documents that when taken together formed a

single agreement. Those three documents are the REC, the counter, and the GA with the

referenced attached survey portion, each of which was admitted into evidence and is a

completed Arkansas Realtors Association Form.

The REC contains a merger clause that states,

This [REC] . . . when executed by both Buyer and Seller, shall contain the entire
understanding and agreement between Buyer and Seller with respect to all matters
referred to herein and shall supersede all prior and contemporaneous agreements,
representations, discussions and understandings, oral or written, with respect to such
matters. This [REC] . . . shall not supersede any agency agreements entered into by
Buyer or Seller and Listing Firm or Selling Firm.

A merger clause in a contract, which extinguishes all prior and contemporaneous

negotiations, understandings, and verbal agreements, is simply an affirmation of the parol-

evidence rule. Altice USA, Inc. v. Johnson, 2023 Ark. App. 120, at 11, 661 S.W.3d 707, 716.

The REC also has a “counterparts” provision, which specifically states that the REC “may

12
be executed in multiple counterparts each of which shall be regarded as an original thereof

but all of which together shall constitute one in the same.”

Per the plain language of the counter: “all other terms as provided in the [i]nitial

[REC] . . . are incorporated herein by reference and shall remain exactly as set forth therein,

solely except those amended above.” Regarding “counterparts,” the counter states that

“[t]his Seller’s Counter Offer to the [REC] . . . may be executed in multiple counterparts

each of which shall be regarded as an original hereof but all of which together shall constitute

one in the same.” The GA states that “upon its execution by both parties, [the GA]

incorporates by reference all provisions of the above-referenced Contract/Agreement not

expressly modified herein.” The GA expressly permits the agreement to be executed in

multiple counterparts, which taken together, will constitute the entire agreement.

Second, the entirety of the agreement reflects that the subject of the contract was the

house property and the bluff property, and the parties to the contract were the Trust and

Smith Sr. The REC, executed by appellees on December 24, 2020, reflects that appellees

made an offer to purchase a “single family detached home with land” located at 805 N. 16th

Street in Van Buren, Arkansas, for the sum of $274,000. The “full legal description” set

forth in the REC is: “home and approximately 1.02 acres. PT NW SE NW S-T-R=19-9-

31 parcel number = 700-08200-000. Complete legal to be determined by survey.”

Paragraph “11. Survey” states the following:

Buyer has been given the opportunity to obtain a new certified survey. Should Buyer
decline to obtain a survey as offered in Paragraph 11A of this Real Estate Contract,
Buyer agrees to hold Seller, Listing Firm and Selling Firm involved in this Real Estate
Contract harmless of any problems relative to any survey discrepancies that may exist
or be discovered (or occur) after Closing.

13
Underneath that provision, the REC provides that “[a] new survey satisfactory to Buyer,

certified to Buyer within thirty (30) days prior to Closing by a registered land surveyor,

showing all improvements, easements and any encroachments will be provided and paid for

by:”, and a box next to the word “seller” is checked. The REC reflects that the seller was

the Trust.

The two-page counter and the two-page GA were also created on December 24.

The first page of the counter reflects a purchase price of $291,000, a closing date of February

22, 2020, and appellees as the buyer. It further reflects “Smith Family Trust” as the seller,

and the property being sold as “805 N. 16th St., Van Buren, Arkansas 72956 Sebastian

County.” But the second page of the counter identifies the seller in print as “Smith Family

Trust / Darrel Smith.” On December 27, 2020, the counter was signed by Smith Sr., and

there is no designation regarding what capacity, if any, Smith Sr. was executing the counter.

It was also electronically signed by appellees that same day.

The first page of the GA reflects the property being conveyed as “805 N. 16th Street,

Van Buren, Arkansas 72956 Crawford County.” The GA reflects appellees as the buyer, and

“Smith Family Trust Darrell Smith” as the sellers. The GA states that

the undersigned Buyer/Lessee and Seller/Lessor in consideration for the covenants,
agreements and promises made below and other good and valuable consideration,
receipt and sufficiency being acknowledged, agree as follows:

Attachment A-New Legal Property description.

The “Attachment A-New Legal Property description” language was filled into the GA form.

Attached to the GA is a portion of the survey that contains a legal description reflecting that

the new legal property description consists of a total 2.93 acres. The GA further states that

14
“upon its execution by both parties, [the GA] incorporates by reference all provisions of the

above-referenced Contract/Agreement not expressly modified herein.” The GA was drafted

by Smith Sr.’s real estate representatives.

The circuit court found that the three documents, including the referenced attached

survey portion, together make clear that the contract was for the sale of the house property

and the bluff property. The REC reflects an offer to purchase a “home and approximately

1.02 acres,” with a complete “legal to be determined by survey.” The second page of the

GA clearly incorporates the attached survey, which contains a legal description of the total

2.93 acres. The GA is plain and unambiguous and clearly brings the bluff property into the

contract. Thus, we hold that the circuit court did not err in finding that a meeting of the

minds occurred such that there was a contract and that the contract included the sale of the

bluff property.

Resorting to parol evidence was not necessary here. Many witnesses provided

testimony explaining why the GA and attached survey were created—to incorporate a legal

description of both the house property and the bluff property—as well as why the REC,

counter, and GA provide as they do. Such testimony is permitted because the parol-evidence

rule does not prohibit the admission of extrinsic evidence to explain what terms mean or to

acquaint the court with the circumstances surrounding the making of the contract. Hurt-

Hoover Invs., LLC, 2014 Ark. 461, at 11, 448 S.W.3d at 703. Here, Certainly, there was no

testimony that the contract was not to have included the bluff property. In fact, Smith Jr.

testified that his father had not involved Smith Jr. in his personal, financial, or real estate

matters since Smith Sr. had retired. Smith Jr. testified further that he did not know Smith

15
Sr. had previously listed the house property and the bluff property for sale; he did not know

about the current real estate contract and counteroffer or that the seller was the Trust; and

he did not know that Smith Sr. had already sold a piece of the bluff property. Best testified

that Smith Sr., who was “sharp,” specifically told her she was not to speak to Smith Jr. about

the sale of the property. There was testimony explaining what the descriptors of the property

being sold meant and how the various parcel IDs came into existence.4 For example, Sandra

Hiener, the Crawford County tax assessor, testified that the parcel ID number on the

REC—700-08200-000—is a number for the “whole” that her office creates to split other

parcels from—and that the 700-08200-000 number included all of Smith Sr.’s properties,

which necessarily included the bluff property. Accordingly, we hold that the circuit court

did not abuse its discretion in permitting the testimony it did, which, in totality, explained

the terms of the contract and the circumstances that gave rise to it.

A contract exists that provides that in exchange for $291,000, the house property and

the bluff property will be conveyed to appellees. The contract is in writing and contains all

the essential terms, including a description of the land to be conveyed, and those terms are

certain. Thus, with respect to appellants’ argument that the statute of frauds was not satisfied,

4
The record reflects that multiple parcel numbers were associated with property
owned by Smith Sr.: parcel ID 700-08200-000, which Heiner testified her office created as
the “main parcel” from which they would split off other parcels; parcel ID 700-08200-002,
which consisted of 3.14 acres and was ultimately “cancelled” as a result of a May 2020 replat;
parcel ID: 700-08200-101, consisting of approximately 1.98 acres and referred to as
Parkview Tract 1—the two additional acres at issue here; and parcel ID 700-08200-102,
consisting of approximately 1.07 acres and referred to as Parkview Tract 2. Smith Sr. sold
Parkview Tract 2 in August 2020.

16
the only question remaining is whether it was signed by the party to be charged or by some

other person properly authorized by the person sought to be charged.

Smith Sr.—the party to be charged—signed the counter he made on December 27,

2020, and there is no designation regarding what capacity, if any, Smith Sr. was executing

the counter. Surveyor Ricky Hill testified that Smith Sr. went to Satterfield Land Surveyors

on December 30, 2020, and ordered a survey and plat on “all of his remaining property.”

Best testified that Smith Jr. agreed to pick up the survey, which reflected that the house

property and the bluff property consisted of 2.93 acres total, because Smith Sr. could no

longer drive. Hill testified that Smith Jr. picked up the survey on February 2, 2021. Best

testified that the GA was prepared with the legal description from the survey attached, and

she contacted Smith Jr. and told him they could meet in person to go over the GA with the

survey or he could e-sign it, whichever he preferred. Best explained that Smith Jr. told her

he would e-sign it and directed Best to have the GA emailed to his email address:

dubsmith3@gmail.com. Text messages exchanged between Best and Smith Jr. were entered

into evidence and corroborate Best’s testimony.

Smith Jr. testified that he picked up the survey at the surveyor’s office, paid for it,

and dropped it off at Waco Title, but that he did not look at it. Smith Jr. further testified

that he does not remember if he signed the GA—he may have, he may not have—but if he

did, it was while his father was still living. He testified that he was contacted on the 9th, but

the GA says the 12th. He further testified that he did not sign a GA after his father died,

which was on February 10, 2021.

The GA shows execution on February 12, 2021, at 7:00 p.m.:

17
Chuck Fawcett testified that Chuck Fawcett Realty, Inc.—Smith Sr.’s real estate

company—uses electronic-document-signing software, which was used to execute the GA.

That software generates a “certificate of authenticity” that provides the date and time a

document is sent, viewed, and signed as well as the name, email address, and IP address of

any signatory.

The certificate of authenticity for the GA, which was admitted into evidence, reflects

the following in relevant part:

18
The certificate of authenticity shows that an email with an invitation to participate in an

electronic signing session was sent to dubsmith3@gmail.com on February 9, 2021 at 7:16

p.m. The certificate of authenticity further shows that the IP address for the electronic

device used by the signatory during the signing session was 107.77.201.81.

Fawcett explained that for the software to generate the certificate of authenticity and

for Smith Jr. to be permitted to sign the GA, Smith Jr. would have necessarily viewed both

the GA and its attachment—the survey portion containing the legal description that reflected

approximately 3 total acres of real property. Fawcett further explained that the certificate

reflected that Smith Jr. electronically signed the GA at 7:35:16 p.m. on February 9, 2012.

Best and Fawcett both testified that the GA’s execution date of February 12, 2021, at 7:00

p.m. is inaccurate because the form was dated incorrectly prior to it being sent for signing.

Appellees signed the third page of the GA—the survey portion—but Smith Jr. did

not. Appellees’ broker, James Vitale, testified that he had appellees sign that page because

appellees were worried about making sure that everyone knew they had it. He further

testified that when he received the GA from Black, it had been signed by Fawcett, Best,

Black, and Smith Jr. Fawcett testified that they did not require a signature on the third page

of the GA—the survey portion—because they do not normally have clients sign an

attachment to a GA.

Jill Swad, customer service rep for BHC Insurance, testified that Smith Sr. had a

homeowner’s policy with them, and Smith Jr. contacted them around February 8 about

canceling that policy effective February 23 since the house would be sold. She further

testified that their records reflect that the request from Smith Jr. came from the email address

19
dubsmith3@gmail.com and the IP address 107.77.201.81. Smith Jr. confirmed during his

testimony that his email address is dubsmith3@gmail.com, and he gets email on his phone.

He testified that he recalled using DocuSign to sign the cancellation request on the

homeowner’s insurance. Smith Jr. further confirmed that he had POA over Smith Sr.’s real

and personal property on February 9, 2021.

Smith Jr.—a person properly authorized by the person sought to be charged—

electronically signed the GA prior to his father’s death. It is well established in Arkansas that

one is bound under the law to know of the contents of a paper signed by him, and he cannot

excuse himself by saying he did not know what it contained. Carmichael v. Nationwide Life

Ins. Co., 305 Ark. 549, 552, 810 S.W.2d 39, 41 (1991). Smith Jr. had authority to sign the

GA as his father’s representative under the POA. The GA clearly references the attached

survey; thus, it matters not that Smith Jr. did not sign the attached survey portion itself. The

GA expressly provides that electronic signatures are permitted and binding upon all parties.

Accordingly, we hold that the circuit court did not err in concluding that the contract

complies with the statute of frauds.

As to consideration, appellees agreed to pay $291,000 for the house property and the

bluff property, and as found by the circuit court, the evidence reflects that consideration

was not lacking. Moreover, appellants’ arguments are unsupported by convincing argument

or authority, and we will not consider such unless it is apparent without further research

that they are well taken. See, e.g., Tech. Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 234,

245 S.W.3d 687, 692 (2006). Appellants’ arguments regarding impossibility of performance

due to some issue with appellees’ financing are also unpersuasive and is a misrepresentation

20
of the record. The testimony reflected that appellees always had financing available to them

for the real-estate purchase. Moreover, the existence of a valid and enforceable contract does

not depend on the terms of the agreements in place between appellees and their financial

institutions.

Appellants’ arguments regarding standing also fail. The circuit court found that under

the POA, Smith Jr. could have conveyed the bluff property to the Trust, thus titling all the

property in the Trust. As the successor trustee, Smith Jr. then could have conveyed the

entirety of the property to appellees. The circuit court further found that it was apparent

from Smith Jr.’s testimony that he never intended to complete the transaction on behalf of

his father, citing Smith Jr.’s testimony that he thought his father had not gotten enough

money for the property, that he would never have sold the property, not even for half a

million dollars, and his belief that appellees, their realtor, and the Fawcett parties had

conspired to cheat Smith Sr.

It is undisputed that the house property was owned by the Trust and the bluff

property was owned by Smith Sr. During his testimony, Smith Jr. confirmed that he was

the successor trustee of the Trust and authorized to act on the Trust’s behalf if his father was

not “able to continue to serve” as trustee. The POA admitted into evidence named Smith

Jr. as Smith Sr.’s attorney-in-fact and specifically authorized Smith Jr. to execute contracts

to sell real property owned by Smith Sr. and to execute deeds conveying Smith Sr.’s real

property. Smith Jr. confirmed that during his testimony as well. The fact of Smith Sr.’s death

and the subsequent opening of his Estate did not eviscerate valid contractual obligations

entered into by Smith Sr. or his agents prior to his death. See, e.g., In re Spann’s Est., 257

21
Ark. 857, 862–63, 520 S.W.2d 286, 290 (1975) (“Contractual obligations which survive

the death of the obligor are binding on his executor in his representative capacity and

enforceable against the estate, and it is the duty of the executor to carry out such contracts

and compliance may be enforced unless the obligations are personal in nature and personal

performance by the decedent is of the essence of the contract.”). The deal could have closed.

Thus, we hold that the circuit court did not err in denying each of appellants’ directed-

verdict motions or in ordering specific performance of the contract. Accordingly, we affirm

the circuit court’s February 18, 2022 oral rulings, the March 18, 2022 order and judgment,

and the April 19, 2022 amended order and judgment.

B. Attorney’s Fees

Appellants next contend that the circuit court erred in awarding fees and costs to

appellees because they are unavailable in an equitable claim, they were excessive, and there

was an insufficient basis to impose them. The standard of review for an appeal of a fee award

is whether there was an abuse of discretion. James v. Walchli, 2015 Ark. App. 562, at 7, 472

S.W.3d 504, 508. There is no fixed formula for determining what constitutes a reasonable

amount of attorney fees. Id. at 7, 472 S.W.3d at 508. Because the circuit court has presided

over the case and gained familiarity with the case and the extent and quality of the services

rendered by the attorney, it has a superior opportunity to assess the critical factors that apply.

Id.

First, attorney’s fees are permissible in a specific-performance case. See Ark. Code

Ann. § 16-22-308 (Repl. 1999); Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995).

Second, appellees were the prevailing parties. Third, appellees presented a well-supported

22
fee motion in a contentious case, and the circuit court granted an amount equal to 66

percent of what was requested. Appellants have failed to demonstrate that there was a clear

abuse of discretion in the attorney-fee award. Accordingly, we affirm the May 16, 2022

order awarding attorney’s fees and costs.

C. Contempt

Appellants contend that the contempt finding must be reversed because the order

and judgment were vague, and there was no showing of an ability to close or post a bond

at the time of the order. They further contend that any accrued daily penalties should be

remitted because appellees posted a supersedeas bond. A contempt proceeding is a cause of

action to enforce valid orders of a court. Mountain Pure, LLC v. Clear Water Holdings, LLC,

2016 Ark. App. 542, at 7, 506 S.W.3d 281, 286. Contempt is a matter between the judge

and the litigant and not between the two opposing litigants. Id. To establish contempt, there

must be willful disobedience of a valid order of a court. Id. For a person to be held in

contempt for violating a court order, that order must be clear and definite as to the duties

imposed upon the party, and the directions must be expressed rather than implied. Id.

The order and judgment clearly directed the parties to close the real-estate deal—the

sale of a house and approximately three acres in exchange for $291,000. At the time of the

order, the Estate existed complete with an executor, and Smith Jr. was the successor trustee

for the Trust. Appellants intentionally and willfully defied a clear and unequivocal court

order. Accordingly, we affirm the May 27, 2022 order of contempt.

As to the daily penalties, that order was also clear—the penalties would cease accruing

upon the satisfaction of one of two things: either the closing of the real estate deal or the

23
posting of the supersedeas bond. Appellants chose the latter. Under the clear language of

the contempt order, the daily penalties ceased accruing at that point. As to any argument

that the entirety of the fees accrued up until the posting of the bond should be forgiven, it

is unavailing. As the circuit court appropriately and understandably stated, “zero” was not

going to do it, given appellants’ contemptuous conduct. Accordingly, we hold that the daily

penalties that accrued up to and including the date that appellants posted their bond were

valid.

IV. Cross-Appeal

On cross-appeal, appellees contend that the circuit court erred by not awarding them

an equitable credit of $24,000 for the deprivation of the use of the property. Appellees

planned to have a double closing on February 22, 2021, selling their home and buying the

property at issue. Appellees closed on the sale of their home, but because they were unable

to close on the at-issue property, they moved into a rent house and stored some personal

belongings. The Smith house was damaged by a tornado in May 2021, and testimony was

given that it would cost $17,829.61 and $5100 to repair those damages—costs that would

have been covered by the homeowner’s insurance had it not been canceled by Smith Jr.,

effective February 23, 2021.

The circuit court ordered the contract performed—the house property and the bluff

property in exchange for $291,000—less equitable credits in favor of appellees for

$22,929.61 in repairs to the house; $1416 in storage fees; $12,000 in rent; and $2400 in

moving expenses. The circuit court declined to also award appellees an equitable credit for

24
the rental value of the Smith house as representative of appellees’ deprivation of the house

during the litigation.

The circuit court’s decisions regarding equitable credits were conclusions of law.

Accordingly, the standard of review is de novo. Barnes v. Wagoner, 2019 Ark. App. 174, at

3, 573 S.W.3d 594, 596. Specific performance is an equitable remedy that compels the

performance of a contract on the precise terms agreed on or such a substantial performance

as will do justice between the parties under the circumstances. McCoy Farms, Inc. v. J&M

McKee, 263 Ark. 20, 32–33, 563 S.W.2d 409, 415–16 (1978). The object in such cases is to

place the party without fault in nearly the same position as he would have been had there

been no default by the other party. Id. The guiding principle in such cases is to relate the

contract back to the date set therein. Id. Although, strictly speaking, legal damages are not

awarded when specific performance is decreed, a decree should, as nearly as possible, give

the complainant credit for any losses occasioned by the delay. Id.

There is no indication in the record that appellees were ever going to do anything

but reside in the Smith house themselves. Because they were unable to due to appellants’

breach of contract, appellees were forced to rent a place to live and store personal

belongings. The circuit court awarded appellees equitable credits representative of those

costs. The circuit court further ordered that appellees be credited for costs that will be

necessary to make repairs to the house. On this record, we cannot say that the circuit court

erred in denying appellee’s request.

Affirmed on direct appeal; affirmed on cross-appeal.

ABRAMSON and WOOD, JJ., agree.

25
Phillip J. Milligan and Robert S. Tschiemer, for appellants/cross-appellees.

Jones, Jackson, Moll, McGinnis & Stocks, PLC, by: Mark Moll, for appellees/cross-

appellants.

26