DIVISION IV

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN E. JENNINGS, JUDGE

CA00-1016

May 30, 2001

J.W. WOMBLE AND

NORMA WOMBLE AN APPEAL FROM HEMPSTEAD COUNTY

APPELLANTS CHANCERY COURT

V. NO. E97-410-2

HONORABLE DUNCAN CULPEPPER,

CINDY GRAY CHANCELLOR

APPELLEE and

CROSS-APPELLANT AFFIRMED ON DIRECT and CROSS-APPEAL

This is an appeal from the Hempstead County Chancery Court's denial of appellee Cindy Gray's petition for the imposition of a constructive trust on a twenty-five-acre tract of land owned by appellant J.W. Womble.1 The chancellor also awarded appellee judgment in the amount of $9,250 for improvements she had made to that tract and to another twenty-acre tract of land owned by appellant. Both sides have appealed from the chancellor's decision.

In 1992, appellee and her former husband, Lewis Gray, entered into an oral lease of appellant's two chicken houses, which were located on the twenty-acre tract. The Grays

agreed to give appellant forty percent of the amount they received for each batch of chickens they sold. According to appellant, the Grays were responsible for all repairs, including capital expenditures, on the property; appellee, however, contends that they were responsible only for expenses of $100 or less. Over the five years of the lease, appellee paid for many major repairs to the property. After appellee and Mr. Gray entered into divorce proceedings, appellee continued to operate the chicken farm. Her friendship with appellant, who was a bachelor, deepened during this period of time, and on February 21, 1994, he made a will designating her as the sole beneficiary of his estate.

In 1995, Sharon Beavers, who owned the twenty-five acre tract, offered to sell it to appellee for $17,500. Appellee had leased this tract from Ms. Beavers for several years, using it as a hay meadow and pasture land. Although appellee was eager to purchase this property, she was unable to do so because her divorce was still pending. When she told appellant about the offer, he agreed to buy the property. According to appellee, he led her to believe that she would either inherit this land from him or that he would deed it to her as soon as she was able to pay him the purchase price. After appellant bought the twenty-five-acre tract, appellee used it without charge and made considerable improvements to it.

The parties' close friendship soured when appellee entered into a romantic relationship with Dennis Kidd, to whom she is now married. Around the end of 1997, appellant ordered appellee off his property. Appellee then sued for specific performance of appellant's agreement to convey the twenty-five acre tract to her; for imposition of a constructive trust on the land; or, in the alternative, for the value of the improvements thatshe had made to both tracts. Appellant counterclaimed for his forty-percent share of the proceeds from the last batch of chickens that appellee had raised on his property.

At trial, appellee testified and presented the testimony of her father, John Murphy, Ms. Beavers, and Paul Ball, the manager of the bank that held the mortgage on the twenty-five acre tract. Norma Womble also testified. Because appellant was unable to testify at trial as a result of poor health, his deposition was entered into evidence.

The chancellor found that the parties had not reached an agreement regarding the payment of expenses or capital improvements on the chicken houses. Noting that it was undisputed that appellee was responsible for all expenses of $100 or less, he found that the parties had not established a course of conduct regarding the payment of expenses in excess of $100. The chancellor also found that appellant had told appellee on more than one occasion that she would be the sole beneficiary of his estate and that she had relied upon these statements in refraining from seeking reimbursement for expenses, including capital improvements and major repairs, to the chicken houses. Finding that appellee had improved the twenty-five acre tract by spending $2,000 for bulldozer work on it, he said that she should be reimbursed for that expense. The chancellor also found that appellee should be reimbursed for the following amounts she had spent on the chicken houses: (1) $1,300 for ten fans; (2) $2,505 for bulldozing work; (3) $1,500 for recabling feed lines; (4) $4,000 for a used feed system; and (5) $525 for a feed system stored on appellant's property. These expenses totaled $11,830. From that amount, the chancellor subtracted $2,580, whichappellee had admitted that she owed appellant as his share of the last batch of chickens she had raised on his property, and gave appellee a net judgment of $9,250.

Although appellee's amended complaint, which added a claim for a constructive trust, was found to be untimely, the chancellor noted that he had accepted evidence on that issue. He found that appellee had failed to establish, by clear and convincing evidence, that appellant had stood in a fiduciary or confidential relationship to her. He stated: "The [appellee] is a capable business [woman] and has in no way demonstrated her dependence on the [appellant] for her well being or protection. The [appellee] made a bad deal and must [accept] the consequences."

Appellant has raised the following points on appeal: (1) the chancellor erred in awarding appellee judgment for her improvements to the property because the parties had no agreement regarding capital expenditures or major repairs; (2) the chancellor's finding of fact that appellee made certain improvements to the property in reliance on appellant's statements that she would be his sole beneficiary is clearly erroneous; (3) the chancellor erred in awarding appellee judgment for $525 for equipment that was not actually used on the chicken farm; (4) the chancellor committed error in granting judgment to appellee for $1,300 for fans that she had purchased before the lease began and which she was free to remove from the property; (5) this court should not give its usual deference to the chancellor's ability to observe the witnesses because appellant's testimony was admitted by deposition; (6) the chancellor's finding that it was undisputed that appellee was responsible for all expenses of $100 or less was clearly erroneous; and (7) the chancellor erred inassigning a value of $4,000 to the used feed line appellee installed on the property. For her cross-appeal, appellee argues that the chancellor erred in failing to grant specific performance of appellant's agreement to convey the twenty-five acre tract to her.

Although chancery cases are reviewed de novo on appeal, we will not disturb the chancellor's findings unless they are clearly erroneous or clearly against the preponderance of the evidence; because the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we will defer to the chancellor's superior opportunity to assess credibility. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993).

Specific performance is an equitable remedy that compels the performance of a contract on the precise terms agreed upon by the parties. Dossey v. Hanover, Inc., 48 Ark. App. 108, 891 S.W.2d 67 (1995). Because specific performance is an equitable remedy, courts of equity have some latitude of discretion in granting or withholding that relief, depending on the equities of a particular case. Id.; Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981). Whether specific performance should be awarded in a particular case is a question of fact for the chancellor; on appeal, the question before the appellate court is whether the chancellor's decision was clearly erroneous. Id. Accord Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000). Given the lack of specificity regarding the terms of appellant's obligation to convey the twenty-five-acre tract to appellee at some point in the future, we can not say that the chancellor's failure to grant specific performance was clearly erroneous.2

Appellant first contends that the chancellor erred in awarding judgment to appellee for certain improvements she had made to both tracts because appellee failed to establish that he was contractually obligated to pay for capital expenditures on the property. We disagree with appellant's characterization of the court's award of damages as being for breach of contract; it is obvious to us that the chancellor based this award upon the doctrine of unjust enrichment. In this context, the lack of an agreement about who was responsible for expenses, repairs, and improvements is not controlling.

The doctrine of unjust enrichment does not describe a theory of recovery, nor is it contractual; it a remedy that is equitable in nature. Sparks Reg'l Med. Ctr. v. Blatt, 55 Ark. App. 311, 935 S.W.2d 304 (1996). Unjust enrichment is based on the principle that one person should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution for property or benefits received, retained, or appropriated, whether requested or not, when it is just and equitable that such restitution be made. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). However, there must be some operative act, intent, or situation to make the enrichment unjust and compensable. Sparks Reg'l Med. Ctr. v. Blatt, supra. It is not necessary, in order to create an obligation to make restitution, that the party unjustly enriched should have been guilty of any wrongful act. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979). The question is simply whether he obtained something of value, to which he was not entitled, to the detriment of someone else. Smith v. Whitener, 42 Ark. App. 275, 856 S.W.2d 328(1993). The remedy is neither given nor withheld automatically but is awarded as a matter of judgment. Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 876 S.W.2d 603 (1994). These principles are harmonious with a chancellor's broad power to fashion any reasonable remedy that is justified by the proof. See Perryman v. Hackler, 323 Ark. 500, 916 S.W.2d 105 (1996); Miller v. Miller, 70 Ark. App. 64, 14 S.W.3d 903 (2000).

There is no question that the repairs and improvements for which appellee paid were of benefit to appellant's property. Appellee testified that she did not seek reimbursement from appellant for these expenses because he had, on numerous occasions, told her that he could not afford to pay for them himself; that he would convey the twenty-five acre tract to her when she could pay him; that she would inherit all of his property; and that she should treat the property as her own. We have no hesitation in holding that the chancellor's finding that appellee relied on appellant's statements in not seeking reimbursement from appellant is not clearly erroneous. This holding applies to repairs and improvements that appellee made both before and after appellant made his will.

Nor can we agree with appellant's contention that the chancellor committed error in awarding appellee $525 for equipment that was not used on the farm and $1300 for fans that, according to appellant, appellee was free to remove from his property. Appellee testified that appellant abruptly terminated the lease, barred her from his land, and refused to permit her to remove some of her property from the farm. In fact, her efforts to retrieve her property resulted in appellant's filing of a theft complaint with the local sheriff's office. Although appellant testified in his deposition that appellee was free to take her property, thechancellor was not required to believe him. Certainly, appellee was justified in being reluctant to attempt another retrieval of her property. In light of appellant's actions, we hold that the chancellor's award to appellee for these items was not clearly erroneous.

Additionally, the chancellor did not clearly err in awarding $4,000 to appellee for the used feed line that she installed. Appellee testified that this line, which cost $2,117, had a value of $4,000 and that it would have cost $7,200, uninstalled, if new. We also note that appellant admitted that he had not kept himself informed of the cost of such expenses.

Appellant argues that the chancellor's finding that it was undisputed that appellee was responsible for expenses of $100 or less is clearly erroneous. It is true that appellant testified that appellee was responsible for all expenses, but the appellee testified that she was responsible for all expenses of $100 or less. Thus, it was indeed undisputed that appellee was responsible for this subset of all expenses.

Finally, we must also reject appellant's argument that we should not give the usual deference to the chancellor's ability to observe the witnesses and determine their credibility because appellant's testimony was admitted by deposition. The chancellor personally observed appellee and her witnesses, as well as appellant's wife, as they testified. He obviously found appellee and those who testified on her behalf to be credible, and his observations are entitled to deference.

Affirmed on both direct and cross-appeal.

Robbins and Baker, JJ., agree.

1 Mr. Womble and his wife, appellant Norma Womble, were married in 1997. She was named as a defendant in this action because of her dower and homestead interests in the property. For simplicity's sake, our references to "appellant" in this opinion are only to Mr. Womble.

2 We do not reach the issue of whether the appellee's failure to obtain a specific ruling on this question is fatal. See Kralicek v. Chaffey, 67 Ark. App. 273, 998 S.W.2d 765(1999).