Hegg v. Dickens

James R. Cooper, Judge.

This is the second appeal in this case. In the first case, Hegg v. Dickens, 270 Ark. 641, 606 S.W.2d 106 (Ark. App. 1980), this Court reversed the trial court’s finding that the appellant’s counterclaim which was based on fraudulent misrepresentation was without merit. We remanded the case for a trial on the issue of damages, with the measure of damages being the “difference between the real value of the property in its true condition at the time of the transaction and the price for which he purchased it.” On retrial, the trial court found that the appellant had been damaged in the sum of $2,000.00. From that decision, comes this appeal.

On remand, various witnesses testified regarding the value of the property in question. The appellant’s expert witness, Mr. R. M. Weaver, testified that his opinion as to the value of the property in question was $50,000.00. The trial court found that testimony to be unreliable because of the basis on which it rested. The trial court noted that Mr. Weaver had viewed the property only the evening before, had considered no comparable sales in the vicinity, and had formed his opinion based on his limited observation of the property and the testimony of the appellees’ expert witnesses. One witness for the appellees testified that she had attempted to purchase the property herself for a price of $75,000.00. Another witness te*stified that he believed the property had a value of between $85,000.00 and $95,000.00. The trial court found that the value of the property was $85,000.00, and awarded the appellant judgment accordingly.

The appellant argues that, because of the fraudulent misrepresentation concerning the net income, the appellant must have been damaged more substantially than $2,000.00 since he paid $87,500.00 for the property based on the representation of its net income. That is a compelling argument, but not necessarily true. It would certainly b,e possible for an individual to purchase property, having been fraudulently induced to do so, and yet the property still have a fair market value equal to or in excess of the price actually paid. Hence, in such a situation, the purchaser would suffer no actual damages, although he had been fraudulently induced into making the purchase.

In chancery cases, we review the record de novo, but we will not reverse the chancellor on appeal unless his findings of fact are clearly erroneous or against a preponderance of the evidence, after giving due regard to his opportunity to determine the credibility of the witnesses. Arkansas Rules of Civil Procedure, Rule 52 (a), Ark. Stat. Ann. Vol. 3A (Repl. 1979); Reeder v. Arkansas Louisiana Gas Co., 6 Ark. App. 385, 644 S.W.2d 291 (1982); Baugh v. Johnson, 6 Ark. App. 308, 641 S.W.2d 730(1982).

There was conflicting evidence regarding the value of the property and the chancellor, after having heard all the witnesses, determined that the credibility of the appellees’ witnesses was greater than the credibility of the appellant’s expert witness. Although the appellees’ witnesses used comparable sales from the city of Conway which concerned larger motel units, they testified that they had taken into consideration the difference in the size of the towns and the size of the motels in arriving at the value opinions.

Although this is a close case, and one which we might have decided differently had we been sitting as the trier of fact, with the opportunity to judge the demeanor of the witnesses, we cannot say that the trial court’s finding is clearly erroneous or against the preponderance of the evidence. Therefore, we must affirm.

Affirmed.

Cloninger, Corbin and Glaze, JJ., dissent.