ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CA 01-383

December 12, 2001

GEORGE YOKEM AND

FAYE YOKEM APPEAL FROM FAULKNER COUNTY

APPELLANTS CIRCUIT COURT

VS.

HONORABLE CHARLES E. CLAWSON

CIRCUIT JUDGE

BILLY TYLER, ET AL.

APPELLEES AFFIRMED

This is an appeal from an order dismissing appellants' complaint in negligence against appellee Billy Tyler. For reversal, appellants contend that the trial court erred by amending the pleadings sua sponte to give appellee the benefit of an affirmative defense and that the trial court's finding in favor of appellee was clearly erroneous. We affirm.

Some seventeen years ago, appellants George and Faye Yokem purchased lot 38 in the Lakeshore Subdivision on Lake Conway. Faye's sister, Hattie, and her husband bought an adjoining lot. The families did not have their lots surveyed, and unbeknownst to anyone, the home appellants built encroached upon the lot owned by Hattie and her husband. Hattie and her husband later sold their lot to appellants' son, Mackey Yokem. Mackey sold the lot to Tony and Charlotte Huckabay in July 1996. Appellee Billy Tyler performed a survey in connection with this sale, but he did not detect the presence of the encroachment.

In June 1997, appellants entered into a contract for the sale of their lot. The prospective buyer, who was a surveyor by trade, discovered the encroachment and then backed out of the sale. Appellants later sued Tyler on a negligence theory for his failure to detect the encroachment in the 1996 survey.

The case was tried to the court. The court found that Tyler's failure to discover the encroachment was not the proximate cause of appellants' damages, reasoning that any damages suffered by the appellants were occasioned by the encroachment itself, which they created, and not by Tyler's failure to discover it.

Appellants' first argument is that the trial court erred in basing its decision on the affirmative defense of comparative fault because that defense had not been pled. The court, however, did not apportion fault. Instead, it found a lack of proximate causation, which is an element of negligence. To establish a primafacie case of negligence, a plaintiff must prove that he sustained damages, that the defendant was negligent, and that such negligence was the proximate cause of the damages. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999). Proximate cause has been defined as that which in a natural and continuous sequence, unbroken by an efficient intervening cause, produced the injury and without which the result would not have occurred. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). Because the trial court did not base its decision on comparative fault, we find no error on this point.

Appellants also argue that the trial court erred in finding that appellee's negligence was not the proximate cause of their damages, based on the testimony of a real estate agent that the defect rendered their property unsellable. In reviewing a bench trial in circuit court, we do not reverse a judgment unless we conclude that the trial court's findings were clearly against the preponderance of the evidence. Trucker's Exchange, Inc. v. Border City Foods, Inc., 67 Ark. App. 231, 998 S.W.2d 434 (1999). Here the trial court's finding on the issue of proximate cause was not clearly against a preponderance of the evidence.

Affirmed.

Pittman and Vaught, JJ., agree.