ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

WENDELL H. NICHOLSON and DIANNA L. NICHOLSON, his wife

APPELLANTS

V.

MARSHA RAE BOWERS

APPELLEE

CA 00-69

February 14, 2001

APPEAL FROM THE PULASKI

COUNTY CHANCERY COURT,

SECOND DIVISION [OT-98-5211]

HONORABLE GREG ALAGOOD, SPECIAL JUDGE

AFFIRMED

Appellants, Wendell and Dianna Nicholson, owned property located at 503 Gardenia Street in North Little Rock, Arkansas. In April 1993 they entered into a purchaser's agreement with appellee, Marsha Bowers, pursuant to which appellee was to purchase the house for $33,000. Appellants carried the note on the property, and by its terms appellee was to pay $350 per month, with the note to balloon on April 1, 1995. At the time set for the balloon payment, however, appellee was not able to make the payment because of extraordinary medical expenses for her child. According to appellant Wendell Nicholson, he told appellee in April 1995 that she converted to the status of renter when she was not able to make the balloon payment. Appellee denied receiving such notification from appellantsand testified instead that appellants simply allowed her to continue making her payments until she was able to secure the necessary financing to pay off the note. Appellee testified that she made substantial improvements to the property amounting to approximately $40,000. In May 1998 appellee had arranged financing, and she said that appellants provided her with a pay-off figure of $26,500. Seven days prior to the date set for closing the house burned, and appellants were paid the proceeds of the insurance policy that they had on the house. The policy paid substantially more than the balance owing on the purchase price, and appellee asked appellants to convey the property to her, but they refused.

In September 1998, appellee filed her complaint for declaratory judgment, for an accounting, and for creation of a constructive trust and equitable lien. A default judgment was subsequently entered and set aside, but is not at issue here. Appellants answered the complaint and counterclaimed that appellee had negligently installed gas heating devices in violation of the purchaser's agreement and that as a result, the structure had caught fire and burned. In addition to the insurance proceeds already received, appellants also sought in excess of $33,000 as the value of the property prior to the fire. In other words, it was appellants' position that they retain the payments made by appellee, that they retain all of the insurance proceeds, that they retain ownership of the property, and that they have a judgment against appellee for more than the purchase price of the property before the fire.

Following a hearing, the chancellor determined that the purchase agreement was not terminated in 1995 by appellee's inability to make the balloon payment; that appellantsshould have conveyed the property to appellee after being paid the full value for the property by the insurance company; and that appellants owed appellee $4,900 in rent for the fourteen-month period from May 1998 through June 1999, during which time they denied her access to the property. We affirm.

Appellants raise five points of appeal: 1) the chancery court's decision to award the property to the plaintiff was clearly erroneous; 2) no notice was required by the mortgagee to accelerate the debt; 3) a modification of a contract for real property is required to be in writing to be enforceable; 4) an agreement to modify or extend credit over $10,000 is required to be in writing to be enforceable; and 5) the appellants received no unjust enrichment.

For their first point of appeal, appellants contend that "the chancery court's decision to award the property to the plaintiff was clearly erroneous." Their entire argument under this point, however, is as follows:

The Chancery Court ruled that the Plaintiff has no interest in the proceeds of the insurance contract, and no cross-appeal was taken from that ruling. The Appellee could not show any payments made for January, February and March of 1998 and testified that she had ceased making payments when the house burned. At the time she ceased making payments either in January of 1998 or in May of 1998, she defaulted on the contract.

We review chancery cases de novo on appeal, and the chancellor's findings of fact will not be reversed unless they are clearly erroneous, giving due regard to the chancellor's superior opportunity to assess the credibility of the witnesses. Carden v. McDonald, 69 Ark. App. 257, ____ S.W.3d ____ (2000). Here, appellee testified that she made every payment until after the house burned in May 1998. To the extent that appellants contend thechancellor was clearly erroneous in determining that appellee had made all of her payments in a timely fashion prior to the house burning, we find no such clear error. To the extent that appellants may be contending that the chancellor was "clearly erroneous" in not finding that appellee's failure to make payments after the house burned constituted a default, we do not consider arguments where an appellant offers no citation of authority or convincing argument and where it is not apparent without further research that the argument is well-taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).

For their second point of appeal, appellants contend that "no notice was required by the mortgagee to accelerate the debt." They further contend that "they gave an oral notice" even though they were "not required by law" to do so; that the instant contract requires that upon default the parties revert to the status of landlord and tenant; that the note must be read together with the mortgage; that the note requires that it be paid in full on April 1, 1995; that the note was not paid in full on that date, and therefore appellee defaulted on the note and agreement. In their one-paragraph argument under this point, appellants set out paragraph 3 of the purchaser's agreement, which provides:

3. Time is the essence of this AGREEMENT, and if BUYER defaults in the payment of any installment of principal and interest for a period of 30 days, or fails to pay any taxes, assessments or insurance premiums when due, SELLER, at its option, may either declare the entire debt due with interest due and payable, or rescind this AGREEMENT, and in the event of recission all monies paid by BUYER shall be taken and retained by SELLER, not as a penalty, but as rent of the property and the relation of the parties thereafter shall be that of landlord and tenant at the rental of $350.00 per month; and thereupon SELLER, after notice, may demand possession of the property, and BUYER agrees to surrender immediately peaceable possession. No delay in the exercise of any of the options herein shall be construed as a waiver of such right, but same may be exercised at any subsequent time. Any notices required hereinmay be made by ordinary mail addressed to BUYER at 503 Gardenia, NLR, AR, unless SELLER be notified in writing of a subsequent change of address.

We find no merit to appellants' argument. The terms of the third paragraph of the agreement give the appellants, as sellers, the option of acceleration of the debt or rescission of the agreement, but do not require either as argued by appellants. At the conclusion of the hearing, the chancellor found that the conduct of the parties was more consistent with the purchaser's agreement remaining in effect. The chancellor clearly credited appellee's testimony that appellants never told her that they considered her status to have changed from buyer to renter following her inability to make the balloon payment in April 1995, and discredited appellant Wendell Nicholson's testimony that he did. Chancellor's findings of fact will not be reversed unless they are clearly erroneous, giving due regard to the chancellor's superior opportunity to assess the credibility of the witnesses. Carden v. McDonald, 69 Ark. App. 257, ____ S.W.3d ____ (2000).

For their third point of appeal, appellants contend that "a modification of a contract for real property is required to be in writing to be enforceable." Their argument under this point consists of two and one-half sentences, asserting that:

The claim of the Appellee is that the Purchase contract did not revert to a rental agreement by an oral modification. The clear terms of the contract were that the Appellee would pay $350.00 per month until April 1, 1995 at which time the note would balloon. In accordance with the terms of the Agreement, paragraph 5 and Arkansas Code Annotated § 4-59-101(a)(4)

As previously discussed, the chancellor determined that the conduct of the parties was more consistent with the purchaser's agreement remaining in effect, despite appellee's failure tomake the balloon payment in April 1995. The chancellor clearly credited appellee's testimony in this regard and not appellant Wendell Nicholson's. Moreover, we do not know the contents of paragraph five of the agreement because it was not abstracted in any manner for us to be able to tell. Finally, appellants make a bare reference to Arkansas Code Annotated section 4-59-101(a)(4), (statute of frauds), with no development of an argument and no mention of the valuable improvements that appellee made to the property. We do not consider arguments where an appellant offers no citation of authority or convincing argument and where it is not apparent without further research that the argument is well-taken. Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997).

For their fourth point of appeal, appellants contend that "an agreement to modify or extend credit over $10,000 is required to be in writing to be enforceable." Under this point, appellants cite Arkansas Code Annotated section 4-59-101(6)(d), and the case of Mahon v. Poling, 2 Ark. App. 1, 616 S.W.2d 20 (1981), in support of their proposition that "[t]he stipulation in a contract for sale for the whole debt to mature upon default is not treated as a forfeiture but rather as a stipulation for a period of credit on condition." They then contend that "[t]he specific terms were that the Note would terminate on April 1^st, 1995," and that "any modification of that credit must be in writing to be enforceable." We do not find appellants' argument convincing. Once again, pursuant to the third paragraph of the agreement, the sellers had the option to accelerate the debt. The chancellor clearly found appellee's testimony more credible than appellant Wendell Nicholson's in determining that the conduct of the parties was more consistent with the purchaser's agreement remaining ineffect, with appellee continuing to make the monthly payments until she could secure financing. Moreover, appellants' argument does not in any way address the valuable improvements made to the property by appellee nor the pay-off amount furnished by appellants to appellee with respect to the impending bank-loan closing.

For their final point of appeal appellants contend that they "received no unjust enrichment." They argue that they had a duty to insure the interest of their creditor against loss, that appellee's improvements to the property were lost due to her failure to obtain insurance coverage, and that appellants should not be punished for appellee's negligence in making repairs to the property. Had appellants' position prevailed below, they would have been allowed to retain the payments made by appellee, retain all of the insurance proceeds, retain ownership of the property, and acquire a judgment against appellee for more than the purchase price of the property before the fire. Instead, the chancellor allowed appellants to keep the proceeds of the insurance policy and ordered them to convey the burned-out property to appellee. Although the agreement apparently did not address the circumstances of destruction of the residence before the note was paid in full and title was transferred to appellee, we do not think the chancellor abused his discretion by ordering the land and burned remains of the residence conveyed to appellee in the exercise of his equitable authority.

Affirmed.

Bird and Vaught, JJ., agree.