ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

RON WITHERS

APPELLANT

V.

HAL CRAFTON, ET AL.

APPELLEES

CA00-1034

June 13, 2001

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. E-1999-670]

HON. KAREN RENEE BAKER,

CIRCUIT JUDGE

AFFIRMED

The appellant in this chancery case contracted to buy 3.5 acres of commercial real estate from appellees for $240,000.00. After an initial down payment of $2,750.00, the remaining $237,250.00 was to be paid at 9% interest with installment payments of $2,750.00 per month for one year, at which time (December 8, 1998) the remainder was due and payable in full. Appellant did not make the final balloon payment when it came due. He did, however, ask one of the appellees about the possibility of extending the contract. Appellant was told that this was a possibility but that an extension would require the agreement of the other seller. Appellant continued to make monthly payments through June 1999, when the sellers decided not to extend the contract and invoked the forfeiture clause to remove appellant from the property. Appellant filed an action for specific performance. After a hearing, the chancellor found that there had been no extension of the contract, that

there was no basis for an equitable mortgage, and awarded appellees attorney's fees in the amount of $5,619.14. This appeal followed.

Arkansas recognizes that a purchaser's rights under an executory contract affecting real estate may be forfeited pursuant to the contract and without proceedings in law or equity. White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950). However, the seller's right to insist on forfeiture may be waived by his conduct:

Parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract, so that the failure to promptly pay will work a forfeiture. Ish v. Morgan, 48 Ark. 413; Quertermous v. Hatfield, 54 Ark. 16, 14 S.W. 1096; Block v. Smith, 61 Ark. 266, 32 S.W. 1070. But the final effect of such an agreement will depend on the actual intention of the parties, as evinced by their acts and conduct; and such a breach of the contract as would work a forfeiture may be waived or acquiesced in. The law will strictly enforce the agreement of the parties as they have made it; but, in order to find out the scope and true effect of such agreement, it will not only look into the written contract which is the evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement, in order to fully determine their true intent. It is a well-settled principle that equity abhors a forfeiture, and that it will relieve against a forfeiture when the same has either expressly or by conduct been waived.

Friar v. Baldridge, 91 Ark. 133, 137, 120 S.W. 989 (1909) (emphasis added).

The contract in the present case expressly stated that time was of the essence and that, in the event of a default, sellers could cancel the contract and take possession of the property, retaining the buyer's prior payments as liquidated damages for the buyer's use of the property. The question on appeal is whether the acts and conduct of the parties resulted ina waiver of the forfeiture provision in the written agreement. This is a question of fact that will not be reversed unless the chancellor clearly erred. See Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992).

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. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000). It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon that right; however, the relinquishment of the right must be intentional. Id. We cannot say that the chancellor clearly erred in finding that no waiver occurred in the case at bar. First, although appellant discussed the possibility of obtaining an extension when he failed to make the balloon payment and was told that this was a possibility, it was clear that this was merely being negotiated and that no final decision would be made until the other partner was consulted. Furthermore, there was evidence that the parties initially had discussed renting the property, and that the amount of the monthly payment under the land sale contract approximated the property's rental value. Finally, appellant did not simply continue to perform under the terms of the contract. By its terms, the contract was to terminate with a balloon payment in December 1998. Appellant was not merely making a late performance, but was instead offering an entirely different performance from what the contract called for. Under these circumstances, we hold that the chancellor was not required to find that appellees voluntarily abandoned their right to declare a forfeiture by acceptance of payments for six months after the contractual deadline.

Appellant also contends that the trial court erred in awarding appellee's attorney's fees in the amount of $5,619.14. Arkansas Code Annotated § 16-22-308 (Repl. 1999) provides, in pertinent part, that:

In any civil action to recover on . . . breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.

Because of the trial judge's intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party's counsel, we usually recognize the superior perspective of the trial judge in determining whether to award attorney's fees. Marcum v. Wengert, 344 Ark. 153, ___ S.W.3d ___ (2001); Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney's fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Marcum v. Wengert, supra.

Appellant argues, in essence, that the chancellor's award of attorney's fees should be reversed because the record does not show what factors the chancellor considered in arriving at the amount of the award. We do not agree. Although the supreme court noted in Chrisco v. Sun Industries, Inc., supra, that trial courts should be guided by recognized factors in making their decision concerning the award of attorney's fees, it specifically stated that there is no fixed formula in determining the computation of such an award. In the present case, appellant neither requested nor received specific findings concerning the factors considered by the chancellor in making her award, and in the absence of such findings the appellantcannot meet his burden of demonstrating that the chancellor abused her discretion by awarding attorney's fees on an improper basis. See Marcum v. Wengert, supra; Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000).

Affirmed.

Stroud, C.J., and Jennings, J., agree.