Patty Jackson, as of the Estate of Tommy Williams And Vela Williams v. Ronnie Crump , 2022 Ark. App. 137 ( 2022 )

Cite as 2022 Ark. App. 137ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-19-661
PATTY JACKSON, AS EXECUTRIX OF
Opinion Delivered March 30, 2022
THE ESTATE OF TOMMY WILLIAMS;
AND VELA WILLIAMS
APPELLANTS APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
V. EASTERN DISTRICT
[NO. 16LCV-17-53]
RONNIE CRUMP
APPELLEE
HONORABLE DAN RITCHEY,
JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
This case is a companion to Jackson v. Crump, 2022 Ark. App. 136, also handed down
today. In both cases Vela and Tommy Williams (the Williamses) appeal the circuit court’s
orders granting specific performance of an option for the purchase of real property in favor
of appellee Ronnie Crump (Crump).1 The Williamses argue that both options violate the
statute of frauds and are unenforceable. The Williamses also argues other different points in
each case. We affirm.
1
Tommy Williams died on June 2, 2020. Patty Jackson was duly appointed the
executrix of Williams’s estate by order of the Mississippi County Circuit Court on September
9, 2020. Jackson, as executrix, was substituted as an appellant by order of this court on
November 4, 2020.
I. Background
On May 29, 2007, in connection with their purchase of a seventy-two-acre tract of
farmland from Lillian Crump, the Williamses granted an option to purchase to appellee
Ronnie Crump. Lillian Crump is the mother of Ronnie Crump. The option, after
identification of the parties and the legal description of the property, provided as follows:
1. This Option may be assigned to BRANDON CRUMP, but no other person.
2. Notification date is defined as not earlier than TEN YEARS after the date
of the recording of a deed conveying the above described property from LILLIAN
CRUMP to TOMMY AND VELA WILLIAMS, and not later than 30 days after that
date. This Option is to be considered personal to CRUMP and his rights under this
agreement may not be assigned to any party other than Brandon Crump.
3. Exercise of Option. If on or before midnight of notification date, CRUMP
shall notify the WILLIAMS of CRUMP’S election to exercise the option hereby
granted by ordinary mail, postmarked prior to the deadline indicated and addressed
to WILLIAMS . . ., a contract shall thereupon result in which the WILLIAMS agrees
to sell and CRUMP agrees to purchase the above-described property for Two
hundred, fifty five thousand dollars ($255,000.). In the event that notice in
accordance with the terms hereof of the election by CRUMP to exercise the option
herein granted is not given within the time indicated, this option shall at once cease
and terminate and CRUMP shall have no further rights hereunder.
4. Option Purchase Price. The purchase price of the above-described property
shall be $255,000.
5. Title Documents. Upon the exercise of this option within the specified time
by CRUMP, WILLIAMS shall provide to CRUMP as promptly as possible a
commitment for title insurance, without exceptions other than for current taxes, for
merchantable fee simple absolute title to the lands described above. If other
exceptions are noted, WILLIAMS shall have a reasonable time within which to cure
the same. In the event that the CRUMP does not assert any material defects in the
title offered, or if the title is found to be acceptable to the parties, a closing date shall
be set for a time mutually agreeable to the parties, but not later than ten (10) days
following the expiration of the length of time necessary to cure said objectionable
defects. In the event that the title is not found to be merchantable and the defects
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therein are not cured by the WILLIAMS within a reasonable time, CRUMP shall
have the right and option to cancel and terminate the then-existing contract for the
purchase of the property and to be refunded the amount paid for the option, BUT
SHALL ALSO BE ENTITLED TO SPECIFIC PERFORMANCE and/or
consequential damages for failure of WILLIAMS to deliver merchantable title.
6. Closing. On the closing date, the WILLIAMS shall make, execute and
deliver to CRUMP a Warranty Deed in proper form conveying a merchantable fee
simple absolute title to the property under consideration subject only to liens for
subsequent taxes. The purchase price shall be paid, in cash, at the closing by CRUMP
TO WILLIAMS.
7. Taxes. All taxes will be paid by WILLIAMS at or prior to the closing date.
8. General. Time is of the essence of this agreement, and if the CRUMP shall
not have exercised this option to purchase within the time and in the manner herein
stated, all of the CRUMP’S rights hereunder shall at once cease and terminate.
9. Recordation of instrument. The parties agree that this option shall be placed
of record at the Craighead County Circuit Clerk’s and ex-officio recorder.
10. This option to purchase is subject to the rights of any lien holder of record
at the time of exercise of the option. Williams shall not encumber the property with
any lien in an amount that exceeds the option price.
11. This option to purchase shall be binding on the Grantors, Williams’, their
successors, heirs and assigns.
12. Special condition: This property is subject to a lease between Williams as
the Landlord and Crump as the Tenant. The right to exercise this option is
conditioned upon Crump fulfilling the terns of that lease attached hereto as exhibit
A.
A “Cash Farm Lease” was executed contemporaneously by the parties allowing
Crump to farm the seventy-two-acre tract for a ten-year period for an annual cash rent of
$9,300 payable to the Williamses by December 31 of each crop year. The lease provided that
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any failure by Crump to pay rent terminated the lease. The lease also provided that, in
addition, the option becomes void.
The deed conveying the property from Lillian Crump to the Williamses was recorded
on May 29, 2007.
On June 9, 2009, the Williamses and Crump entered into a second contract that
terminated the lease.2 The 2009 contract provided as follows:
4. That it is the desire of the [sic] Crump and Williams to terminate both of said
leases at this time.
5. That it is in the best interest of both parties to terminate said leases at this time
and the parties do hereby agree to terminate said leases at this time. All provisions of
said leases are hereby null and void and shall not be enforced by Crump or Williams.
6. That as consideration for terminating said leases, Williams agrees to pay and
Crump agrees to accept the amount of Ten Thousand Dollars ($10,000.00).
Attached to the contract were copies of the leases being terminated. Crump discontinued
paying the cash rent and farming the seventy-two-acre tract thereafter.
Lillian Crump died in December 2010.
Crump exercised the option by sending the Williamses letters from both himself and
his attorney dated June 7, 2017. The Williamses refused to comply.
II. The Litigation
Crump filed suit on December 22, 2017, seeking specific performance to compel the
Williamses to convey the property to him. The Williamses answered, denying the material
2
This contract also terminated the lease involved in the companion case.
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allegations. They also asserted that the option was contingent upon Crump’s performance
of his obligations under the lease and that he had failed to perform. The Williamses also
pled the statute of frauds as an affirmative defense. The lease was attached as an exhibit to
the answer.
The two cases proceeded on parallel tracks. There were several disputes about the
Williamses’ cooperating and answering discovery, and Crump filed several motions to
compel. During these earlier disputes, the circuit court awarded Crump $2,500 in attorney’s
fees as a sanction for discovery violations in both cases. Finally, in November 2018, the
circuit court issued similar orders on the outstanding discovery disputes. The court found
that the Williamses did not file timely responses to the discovery and had not acted in good
faith in complying with earlier discovery orders. The court did not strike the Williamses’
answer but said it would reconsider if there were further discovery violations. The court
imposed other sanctions, including limiting the Williamses to using witnesses and
documents already identified in the discovery responses.
On December 31, 2018, the Williamses moved for summary judgment arguing that
Crump had not complied with the special condition precedent to his exercise of the option.
The motion asserted that Crump had failed to fulfill the terms of the lease, including failing
to pay rent, which terminated the lease. According to the Williamses, the termination of the
lease also voided Crump’s option to purchase. In a supporting brief, the Williamses claimed
that Crump did not pay the cash rent for the 2008 crop year. They further claimed that the
parties’ termination of the lease also rendered the option void.
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In his response to the Williamses’ motion for summary judgment, Crump pointed
out that the Williamses ignored the June 2009 contract terminating the lease. He also argued
that it was generally a factual question whether a condition precedent has been met or
excused.
On January 18, 2019, Crump moved for summary judgment, seeking specific
performance. He asserted that the purchase price was $255,000; that he was ready, willing,
and able to purchase the property; that the Williamses failed to convey the property after he
had exercised the option; and that he was entitled to specific performance because of the
Williamses’ breach for failure to close. He also alleged that the contract terminating the
leases provided that all of the provisions of the leases were null and void and unenforceable;
that the contract did not mention the option; and that the option remained in full force and
effect.
The Williamses responded to Crump’s motion for summary judgment by arguing that
the option was invalid and unenforceable because an option is merely a unilateral contract.
They further argued that the option failed to satisfy the statute of frauds, and even if it did,
it was unenforceable because it failed to include seven other terms they deemed essential.
The Williamses also asserted that Crump’s failure to comply with the option’s special
condition rendered the option unenforceable. The Williamses filed supporting affidavits
stating that Crump had failed to pay rent for the 2008 crop year and admitting that they
executed the 2009 contract terminating the leases.
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On March 12, 2018, a hearing was held on Crump’s motions for summary judgment
in both cases and the Williamses’ motion for summary judgment on the special condition.
At the conclusion of the hearing, the court ruled from the bench and granted Crump partial
summary judgment on the contract-validity issues in this case. The court also denied
Williamses’ motion for summary judgment. The court found that there was an issue of fact
as to whether the special condition in the option was complied with, precluding specific
performance at that time. The court’s order memorializing its summary-judgment bench
ruling was entered on March 20, 2019.
On April 30, 2019, the parties stipulated that Crump suffered damages in the amount
of $20,000 for the 2018 crop year and would be entitled to damages in that amount if
judgment were entered for Crump.
A bench trial on the special-condition issue was held on May 13, 2019. On May 29,
the court entered its judgment finding that the June 9, 2009 contract was prepared at the
request of the Williamses by their attorney, and it referenced neither the option nor any
existing alleged breach of the lease by Crump, whether for nonpayment or any other
violation. The court further found that the contract expressed a mutual interest to terminate
the lease and stated that the lease was null and void. The court found that the Williamses’
conduct regarding the contract to terminate the lease was inconsistent with the claim of
nonpayment of rent. The court also found that Crump had received payments under the
contract, but that the Williamses had also received a significant financial benefit from the
contract because it terminated the long-term lease with a fixed annual rent payments that
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had no provision for rent increases during the term of the lease. The court found that the
Williamses never gave any notice of default regarding the lease and took no action with
respect to any alleged default; nor did they take any action to terminate the lease because of
any alleged nonpayment of rent; and they took no action to evict Crump until 2013. The
court further found that Mr. Williams had been engaged in farming operations since he was
a young man and was certainly familiar with a landlord’s or tenant’s rights under farm leases.
The court also determined that by executing the contract, the Williamses expressly,
knowingly, and willingly waived the condition precedent to the option; therefore, the
condition precedent was excused. The court also awarded Crump damages in the stipulated
amount of $20,000.3 This appeal followed.
III. Issues on Appeal
In this case, the Williamses makes some, but not all, of the arguments that were made
in the companion case. Specifically, they argue that the circuit court erred in (1) finding that
the option ripened into a bilateral contract when Crump exercised the option, (2) imposing
additional terms for the closing that were neither reflected in the option nor within any
other agreement between the parties; and (3) finding the statute of frauds did not apply and
3
Crump timely filed a motion seeking attorney’s fees and costs of approximately
$55,000. The time records submitted contained entries for both this case and the companion
case. The Williamses responded to the motion. However, there is no evidence the circuit
court ruled on the motion. The Williamses do not raise any issues about attorney’s fees. In
Harold Ives Trucking Co. v. Pro Transp., 341 Ark. 735, 19 S.W.3d 600 (2000), our supreme
court held that an award of attorney’s fees is a collateral matter that does not affect the
appealability of the underlying order.
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that the option was valid. The Williamses also argues that the court erred in finding that the
special condition provision of the option had been waived.
IV. Discussion
The Williamses’ first three points are, with one exception to be discussed below,
identical to arguments they raised in the companion case. We affirm these points for the
reasons given in the companion case, Jackson v. Crump, 2022 Ark. App. 136.
The one exception is that in this appeal, unlike the companion case, the Williamses
argue that the lack of a specific closing date renders the option invalid under the statute of
frauds. We disagree.
As quoted above, paragraphs 5 and 6 of the option set out the provisions on when
the transaction will close. The option specifies that the time of performance is to be at
closing. The closing date, in turn, depends on whether there are any defects in the title
presented to Crump. Because Crump did not assert any material defects in the title, the
closing date was to be set for a time mutually agreeable to the parties, but no later than ten
days following the expiration of the length of time necessary to cure the objectionable defects.
With no title defects to cure, closing was to have been no later than ten days following
Crump’s review of the title. This is consistent with our cases holding that when a contract
does not provide a specific date for performance, the law implies that it must be within a
reasonable time. See, e.g., Sturgis v. Meadors, 223 Ark. 359, 266 S.W.2d 81 (1954); Excelsior
Mining Co. v. Willson, 206 Ark. 1029, 178 S.W.2d 252 (1944); Taylor v. George, 92 Ark. App.
264, 272, 212 S.W.3d 17, 23 (2005).
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That brings us to the Williamses’ final point in which they argue that the circuit
court’s finding that the special-condition provision of the option had been waived is clearly
against the preponderance of the evidence.
Waiver is the voluntary abandonment or surrender by a capable person of a right
known by him to exist, with the intent that he shall forever be deprived of its benefits, and
it may occur when one, with full knowledge of the material facts, does something that is
inconsistent with the right or his intention to rely upon it. Hogan v. Bank of Little Rock, 2021
Ark. App. 72, 618 S.W.3d 194. Whether a waiver occurred is a question of intent, which is
usually a question of fact. Id. Therefore, on the issue of waiver, we do not reverse the circuit
court’s finding of fact unless it is clearly erroneous or clearly against the preponderance of
the evidence. Id. We cannot say that the circuit court clearly erred in finding that the option’s
special condition was waived.
Basically, the Williamses’ argument ignores the 2009 contract and seeks to enforce
the original terms of the lease and option despite the 2009 contract stating in clear language
that “[a]ll provisions of said lease are hereby null and void and shall not be enforced.” The
option and the lease were executed at the same time—May 29, 2007. They were part of the
same transaction, and each document specifically refers to the other document. Generally,
instruments executed at the same time by the same parties for the same purpose and in the
course of the same transaction are, in the eyes of the law, one instrument and will be read
and construed together. Freeman Holdings of Ark., LLC v. FNBC Bancorp, Inc., 2019 Ark. App.
165, 574 S.W.3d 181; see also Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006); Van
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Dyke v. Glover, 326 Ark. 736, 743, 934 S.W.2d 204, 208 (1996). Although the 2009 contract
terminating the lease did not refer to the option, it nevertheless modified the option and
eliminated the condition precedent of complying with the lease. Because the lease was
terminated, the condition precedent was superfluous and could not be enforced.
The Williamses do not explain how the special condition of the option remains
enforceable after the termination of the lease in 2009. It is an appellant’s burden to
demonstrate and explain reversible error. See Fayetteville Express Pipeline, LLC v. Ark. Pub. Serv.
Comm’n, 2017 Ark. App. 557, 533 S.W.3d 106; Tri-Eagle Enters. v. Regions Bank, 2010 Ark.
App. 64, 373 S.W.3d 399. Moreover, the Williamses are essentially asking this court to weigh
the evidence differently than the circuit court. Arguments asking that we reweigh the
evidence are not reversible-error arguments. Genz v. Cooksey, 2021 Ark. App. 175.
Affirmed.
VIRDEN and MURPHY, JJ., agree.
Parker Hurst & Burnett PLC, by: Donald L. Parker II and Ronald S. Burnett, Jr., for
appellants.
Lyons & Cone, P.L.C., by: Jim Lyons and David D. Tyler, for appellee.
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