NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CA00-1019

MAY 30, 2001

F. LEE BEASLEY, III

AN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT

v. [CIV 98-776 II]

HAL B. VANATTA HONORABLE TOM SMITHERMAN, APPELLEE CIRCUIT JUDGE

AFFIRMED

This is a case in which the appellant, F. Lee Beasley, III (Beasley), was found liable for trespass as a result of destroying a building structure that sat on property owned by appellee, Hal B. Vanatta (Vanatta). The circuit judge, sitting as factfinder, awarded appellee damages in the amount of $51,000. On appeal, appellant argues that he did not trespass because he acted with the express and implied consent of the owner.

On June 6, 1997, the parties, who are both knowledgeable in real estate development, executed an agreement for the purpose of developing and acquiring real estate. The agreement provided that the parties would form a corporation known as Citcon, Inc., become directors of the corporation, and subscribe and pay for 150 common shares each by allowing the corporation to purchase and own certain real property titled in the names of the parties. As security for the payment of his shares, Vanatta executed a promissory note for $222,657.61, which was referred to in a pledge agreement with power of sale entered into between the parties. The June 6 agreement provided the following relevant provision:

Article XI.

Dissolution

This agreement is conditioned upon the corporation taking title to the property hereinabove referred to. Should the seller thereof be unable to convey title to the corporation, then this agreement shall terminate forthwith and the parties shall be discharged from any obligation hereunder.

Prior to the June 6, 1997, agreement, Beasley was listed as the registered agent under the Articles of Incorporation of Citcon, Inc., filed on April 24, 1997. The Articles of Incorporation reflected that Beasley was the sole director on the board of directors. Beasley testified that after Citcon was incorporated, he discussed with Vanatta the possibility of becoming partners in establishing convenience stores. He testified that following the June 6, 1997, agreement, the parties met on an "every-other-day" basis to move their project along. He stated that the parties purchased dirt-working equipment, two gas tanks, and signed a contract for $65,000 worth of equipment to pay for the tanks. Beasley testified, however, that by the end of July 1997, he had trouble locating Vanatta. He testified that he was eventually able to talk to Vanatta in late July when Vanatta came to his office. At that time, Vanatta asked to speak with Beasley alone and told Beasley that he wanted to talk with him about the best interest of the corporation. According to Beasley, Vanatta said, "I may have to step aside as your partner" and "I just don't want to bring you into any trouble I may incur." Beasleytestified that Vanatta was concerned about an apartment building he owned and that the property Vanatta spoke of was the same stock Vanatta pledged under their agreement. Beasley testified that on the next day, he went to Vanatta's home and offered to pay the remaining debt on Vanatta's property. Beasley testified that Vanatta declined his offer and that the parties agreed that Vanatta would "step aside as far as the corporation at that time." Beasley testified that "based on [his] understanding of that conversation, [he] was going to continue on with respect to the property" and "make monthly payments on the $69,000 mortgage that was on the property."

Beasley testified that he attempted to contact Vanatta after July 31, 1997, but was never able to reach him. He testified that he destroyed the buildings on Vanatta's property "in reliance in part upon the agreement that [he] had with Vanatta" and that he discussed the demolition of Vanatta's building with Vanatta "many times." Beasley testified that he had walked through the building with Vanatta and James Stovall, whose company was responsible for demolishing Vanatta's property. Beasley testified that Vanatta never indicated that he did not want the building destroyed and that Vanatta was aware that the building was going to be demolished.

Vanatta testified that he was not aware of any time that Beasley attempted to reach him. He stated that when he met Beasley in Beasley's office in late July1997, he did not indicate to Beasley that he was withdrawing from the parties' agreement. Instead, he informed Beasley that if "problems became such that it would impact the Citcon project in a negative manner, [he] would be willing to withdraw." Vanatta also testified that whenBeasley and his secretary came to his home the following day, he did not indicate to Beasley that he had withdrawn from their agreement and that he felt the parties were "just talking about something in the future." Vanatta testified that he informed Beasley that he would "know something about the problem [he] was discussing with him in the future and that would be next Wednesday." Vanatta admitted that he told Beasley that he would sell his property to him if he became "adversely impacted," but stated that the parties did not reach any terms and the matter was not discussed any further.

Vanatta testified that he did not have any objection to the destruction of his building if the corporation had been formed. He stated that if "the documents had been conveyed and the corporation fulfilled, it was [his] intent to comply with putting the property into the corporation." Vanatta stated, "I had already prepared mine and held it in readiness at my attorney's office waiting for the same thing to happen on the other side." Vanatta further stated that he specifically informed James Stovall not to tear his building down without his permission and that Stovall indicated that he understood his instructions. He also stated that he did not leave Stovall with the understanding that the building could be destroyed at some point in the future.

James Stovall testified that "a few weeks before [he] demolished the building [he] recall[ed] having an instruction that [he] could destroy the building in three days if [he] didn't hear from Vanatta." He testified that he didn't know the exact date that the building was destroyed, but that he felt that the date was August 21, 1997.

On September 10, 1997, Beasley filed a complaint to rescind the June 6, 1997,agreement and all ancillary agreements entered into between the parties and to request that the trial court "order Vanatta to record the deed referred to in paragraph 10 of the agreement." In his answer, Vanatta denied that Beasley should be entitled to any relief and that stated the complaint should be dismissed. Vanatta then filed a counterclaim and a third party complaint, alleging that "subsequent to the execution of the agreement, the exact date unknown to Vanatta, Stovall, while working in conjunction with Beasley, willfully trespassed upon the subject real property owned by Vanatta without his authority, permission, or consent and destroyed the building structure located thereon." Vanatta requested actual damages and punitive damages against Beasley and Stovall. However, on July 28, 1998, the trial court entered a consent decree wherein the parties stipulated to relinquish each other from any right, title and interest to their respective real properties, relinquish Vanatta from any right, title and interest in Citcon, Inc., and rescind the June 6, 1997, agreement and all ancillary documents. The parties stipulated in the consent decree that Beasley was in "a position of respondeat superior in relation to the actions of Stovall complained of by Vanatta and agreed to indemnify Vanatta with respect to any damages that he may have sustained." The parties further stipulated that the third-party complaint against Stovall should be dismissed, and they agreed that any remaining action as to damages should be transferred to circuit court. Following a transfer of the parties' causes of action to the circuit court, the circuit judge entered an order on May 10, 2000, finding for Vanatta on Beasley's claim for damages and granting judgment for Vanatta in the amount of $51,000 in damages.

Appellant now argues on appeal that he did not trespass onto Vanatta's propertybecause he acted with the express and implied consent of Vanatta.

In bench trials, the standard of review on appeal is whether the trial judge's findings were clearly erroneous or clearly against the preponderance of the evidence. Dugal Logging, Inc. v. Ark. Pulpwood Co., 66 Ark. App. 22, 988 S.W.2d 25 (1999). The appellate court reviews the evidence in the light most favorable to the appellee and resolves all inferences in favor of the appellee. Stuttgart Reg'l Med. Ctr v. Cox, 343 Ark 209, 33 S.W.3d 142 (2000). Disputed facts and determinations of credibility of witnesses are within the province of the factfinder. Id.

A trespasser is one who comes upon land without the consent of the possessor. Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 668 (1984). Here, the parties entered into an agreement whereby certain real estate properties owned by the parties would be conveyed to Citcon, Inc., for the purpose of establishing commercial convenience stores. Vanatta testified that in late July 1997, he did not indicate to Beasley that he was withdrawing from the June 6 agreement and he further testified that he did not want his building destroyed until the corporation had been formed. He testified that he had already prepared the documents for the conveyance of his property to the corporation and was "waiting for the same thing to happen on the other side." The evidence shows, however, that title to Vanatta's property was never conveyed to Citcon, Inc. In fact, Beasley admitted that title to Vanatta's property remained in Vanatta's name at the time of the demolition of the building. Because the express language in the June 6, 1997, agreement, states that the parties' agreement was conditioned upon the corporation taking title to the property held in Vanatta's name, weconclude that there was no evidence of an express or implied consent permitting Beasley to demolish Vanatta's property. Accordingly, we affirm the trial court's findings.

Affirmed.

Bird, J., agrees.

Pittman, J., concurs.