ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

LARRY TULLIS AND REGINA TULLIS,

APPELLANTS

V.

KARIN JUNE MCCORKLE,

APPELLEE

CA01-417

NOVEMBER 28, 2001

APPEAL FROM THE HEMPSTEAD COUNTY CHANCERY COURT,

NO. E99-424-1,

HON. JAMES GUNTER, JR., JUDGE

AFFIRMED

This appeal is brought from a chancery decree ordering specific performance of a contract granting an easement. We affirm.

Appellee Karin McCorkle was the owner of 10.583 acres of rural property in Hempstead County. On May 24, 1993, she sold 10.066 acres to appellants Larry and Regina Tullis, reserving .517 acres that contained her home. The parties' sales contract contained the following language:

It is further agreed, as part of the consideration for the sale of this property, that the Buyer [appellants] shall grant to the Seller [appellee] an easement across the above-described properties for the purpose of access for placing of sewer or other septic lines to provide sewer to the property now owned by the Seller and described as follows: [description of the .517 acres].

A deed that was executed by the parties on the same day that the contract was signed did not mention the easement.

In the fall of 1999, appellee rented her home to a large number of tenants. Shortly

thereafter, problems arose with the home's septic tank, and appellee decided to install a new septic system. The first design she commissioned placed the entire system on the .517 acres. However, that design was disapproved by the Arkansas Department of Health due to unsuitability of the soil and the lines' proximity to a well. A second design placed most of the system on appellants' land with the exception of the line running to appellee's house. Appellants objected to the installation of the system, and they posted their property and pulled up marking stakes to prevent it.

On December 30, 1999, appellee sued appellants seeking specific performance of the easement provision of the contract. Appellants defended on the grounds that the contract was merged into the deed, which did not mention the easement; that appellee's cause of action was barred by the statute of limitations; and that the contract did not contemplate the placement of an entire septic system on the property. Following a trial, the chancellor ruled that the sales contract created a valid easement in favor of appellee. Appellants were ordered to specifically perform the relevant provision of the contract and to pay appellee $2,181.96 in attorney fees. Appeal is brought from that ruling.

We review chancery cases de novo on appeal, but we do not reverse a chancellor's findings unless they are clearly erroneous. McEntire v. Watkins, 73 Ark. App. 449, 43 S.W.3d 770 (2001). In particular, a chancellor's finding regarding the existence of an easement will not be overturned unless it is clearly erroneous. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). A finding is clearly erroneous when, although there is evidence to support it, the entire evidence leaves us withthe firm conviction that a mistake has been committed. Id.

Appellants' first argument is that the sales contract merely contains an agreement to grant an easement, not the requisite words of transfer sufficient to actually create an easement. See White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992). We are unable to address this assignment of error. Our review of the record, as abstracted, does not reveal that appellants made this particular argument to the chancellor. An argument that was not raised below will not be considered for the first time on appeal. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000).

Next, appellants contend that appellee's lawsuit was barred by the five-year statute of limitations pertaining to breach of written contracts. See Ark. Code Ann. §16-56-111(a) (Supp. 2001). They claim that appellee's cause of action accrued in 1993 when the contract was executed, thereby making her 1999 lawsuit untimely. Although this argument was made below, it was not ruled upon by the chancellor. Neither the chancellor's remarks from the bench nor his decree mention the statute of limitations. Even if an issue is raised during the proceedings, we cannot consider it if it is not brought to the chancellor's attention for a ruling. See Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). In any event, we note that appellee filed her lawsuit within a few months after she became aware that appellants would oppose her attempt to place the septic system on their property, i.e., when appellants indicated their repudiation of the contract. See Eckles v. Arkansas Real Estate Comm'n, 30 Ark. App. 69, 783 S.W.2d 864 (1990). Thus, she filed her lawsuit within five years of the time her cause of action accrued. Id.

Appellants' final argument is that the chancellor erred in awarding attorney fees to appellee. We affirm the chancellor's award in light of our holding that appellee was the prevailing party in an action seeking specific performance of a contract. See Ark. Code Ann. §16-22-308 (Repl. 1999); Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995).1

Affirmed.

Jennings and Roaf, JJ., agree.

1 Appellants briefly mention their merger argument in their conclusion, but they make no convincing argument in their brief, nor do they cite any authority in support of it. Therefore, we do not address the issue of merger. See Collins v. Cunningham, 71 Ark. App. 297, 29 S.W.3d 764 (2000).