ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CA02-504

January 15, 2003

AL CASH AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[EQ01-204]

V. HON. COLLINS KILGORE, JUDGE

JEFF STYERS

APPELLEE AFFIRMED

This appeal arises from a dispute in an automobile purchase transaction in Pulaski County. The trial court found appellant, Al Cash, liable for fraud in the inducement, for a total cost of $8,333.07. Appellant specifically contends that the trial court erred in (1) allowing appellant's counsel to withdraw from the case because appellant did not receive proper notice, (2) not granting appellant a continuance to obtain new legal representation, (3) finding fraud in the inducement and damages, and (4) allowing excessive attorney fees. We affirm.

However, we must first address an ever more recurring phenomenon concerning noncompliance with our appellate procedural rules. Appellant failed to abstract his notice of appeal or include it in the addendum, despite the plain requirements of Rule 4-2(a)(8) ofthe Arkansas Supreme Court and Court of Appeals (2002). The record shows that appellant filed the notice within the time period prescribed by Arkansas Rule of Appellate Procedure 4(a) (2002). We caution and remind counsel that although the rules no longer authorize us to dismiss a case for such noncompliance, we still have the option to order rebriefing. Rules of the Arkansas Supreme Court and Court of Appeals 4-2(b), (b)(3) (2002). We choose not to do so today, but in light of the recurring incidents of noncompliance we issue this reminder so that counsel can exercise greater diligence in the future.

Appellant purchased a 1995 Lexus GS 300 from Auto Buyers. He then placed an advertisement in the newspaper to sell the vehicle. Appellees, Cassie Styers and Jeff Styers,1 responded to the ad and met appellant to test-drive the vehicle. At the end of that meeting, Cassie Styers handed appellant a deposit check. The parties dispute certain representations allegedly made by appellant during that meeting, primarily concerning title history, encumbrances, and mechanical conditions.

A few weeks later, Cassie Styers contacted appellant and informed him that her bank loan had been approved so that she could proceed with the automobile purchase. Appellant brought the vehicle to appellees' house where Cassie Styers again briefly examined the car. When Cassie Styers wanted to tender final payment to appellant, she discovered that appellant had not brought the title to the vehicle. Ms. Styers was reluctant to pay for the vehicle without receiving the title; however, appellant received a check for final payment.

After leaving appellees' residence, appellant went to Auto Buyers and obtained the title to the vehicle. He placed Jeff and Cassie Styers' name on the title and delivered the title along with a bill of sale to appellees by placing both in their mailbox. Subsequently, Cassie Styers noticed that the windshield had not been replaced as she claims appellant had agreed. When she contacted the Lexus dealership about certain repairs, she discovered that there was a lien on the vehicle for repairs for which appellant had not paid. She also questioned the condition of certain triple seals.

On April 20, 2001, after attempting to contact appellant about a refund of their money, appellees brought an action against appellant alleging fraud.2 Appellant filed an answer, but appellees allegedly never received a copy of the answer. Consequently, appellees moved for default judgment against appellant. The trial court held a hearing on that motion on June 19, 2001, apparently in the absence of appellant and his counsel. Appellant later claimed that he did not have notice of that hearing. The lower court entered judgment against appellant in the amount of $16,580. The original trial date had been set for August 13, 2001, a date of which appellant again claims that he had no notice.

On August 21, 2001, several days after the trial on the merits should have taken place if it had not been for the default judgment, appellant filed a motion to set aside the default judgment and for injunctive relief. The trial court granted the motion. Apparently only one day later, though, counsel for appellant mailed to the trial court a motion to be relieved ascounsel for appellant. The clerk of the court filed that motion on August 23, 2001. In a letter to the judge, dated September 3, 2001, appellees objected to the withdrawal of counsel for appellant, unless upon the condition that the court not grant a future motion for continuance because of the withdrawal. On September 5, 2001, counsel for appellant certified and mailed a letter to appellant, ostensibly notifying him of his motion to be relieved. The postal service attempted delivery of that letter, with second notice on September 12, 2001, but failed. The hearing on the motion to be relieved as counsel for appellant took place September 18, 2001, in the absence of appellant. On September 22, 2001, the postal service returned as undelivered the letter to appellant notifying him of his counsel's motion to be relieved. On September 26, 2001, the trial court entered an order relieving appellant's counsel, noting specifically that Al Cash failed to appear despite receiving notice by certified mail, and determining that no continuance would be granted. On October 1, 2001, the thus relieved counsel for appellant mailed a letter to appellant informing him of the fact that he was in fact relieved as counsel. As ordered by the court, on October 11, 2001, the relieved counsel indicated to the trial court that the notice of the hearing had been returned unclaimed and that he had mailed a letter to appellant informing him of the order relieving counsel. As proof, the relieved counsel attached an envelope-mailed and certified to appellant Cash, with all relevant postal entries and the return slip of the certified letter still attached-as well as the October 1 letter to appellant. The postal entries clearly indicated that the postal service attempted delivery, but appellant never accepted or claimed the letter.

On October 15, 2001, the hearing on the motion to set aside the judgment and for injunctive relief took place. At that hearing, appellant argued that he learned for the first time that he no longer had legal representation. He consequently tried, unsuccessfully, to obtain a continuance from the trial court, and had to proceed with his case pro se. At trial, appellees testified about the vehicle problems and the damages they claimed as a result of appellant's actions. Subsequently, the trial court entered a judgment against appellant, based on fraud, in the total amount of $8,333.07.

I. Motion to Withdraw, Proper Notice, and Continuance

Appellant argues that the trial court should not have granted his counsel's motion to withdraw because he did not receive adequate notice that allowed him to obtain legal representation in time for the trial. Alternatively, appellant argues that the trial court should at least have granted a continuance so that he might have been able to obtain replacement legal representation. The basic issue of withdrawal is governed by Rule 64(b) of the Arkansas Rules of Civil Procedure that states specifically, in relevant part:

A lawyer may not withdraw from . . . representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; . . . .3

Rule 64(b) serves to protect the client's interest, and therefore, the trial court contemplating a motion to withdraw should focus on whether the client's interest is protectedand whether the requirements of Rule 64(b) are met. Snowden v. Riggins, 70 Ark. App. 1, 13 S.W.3d 598 (2000) (citing Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996)). Providing notice to the party affected by the withdrawal is important. See id. In Snowden, this court found notice inadequate where withdrawal was accomplished only seven calendar days before the hearing on the merits. Id. Notably, in that case, counsel seeking withdrawal and notifying his clients never received any green cards back acknowledging the letter's receipt, in accordance with his clients' claim that they never received any notice of the withdrawal. Id.

In the present case, we hold that the trial court did not abuse its discretion when it denied appellant's motion for continuance. The record shows that the withdrawing attorney made sincere and reasonable efforts to provide appellant with proper notice. The then-counsel for appellant sought withdrawal from the case and had his motion filed on August 23, 2001. He sent a certified letter to appellant notifying him of the motion and intent to withdraw on September 5, 2001. This occurred thirteen days before the date of the hearing on the motion. However, Arkansas case law apparently contemplates the time span between the points in time when the withdrawal is accomplished and the hearing on the merits-for which counsel seeking withdrawal had been retained-not the time span between when the withdrawal is filed, or the client is notified of such motion, and the hearing on the motion for withdrawal. See Snowden v. Riggins, supra.

In addition, appellant's former counsel proved that appellant did not accept delivery of the certified mail by providing the trial court with the envelope in question. This envelopeclearly shows that the postal service tried to deliver the letter at least once, ostensibly twice, and eventually returned it to the sender. In fact, the postal service indicated that second notice, not first notice, was provided to appellant on September 12. Clearly appellant had a reasonable opportunity to accept the letter prior to that date. The postal service returned the envelope to his lawyer, along with its still attached green certification card, not signed by appellant. While appellant correctly states that the actual letter contained in that envelope is not part of the record, we are mindful that we generally defer to the trial judge's superior position for assessing witness credibility. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001). The former counsel stated that he notified appellant of his motion to withdraw, and the trial judge believed him.

The remaining question is whether the trial court should have granted a continuance. Granting a continuation based on withdrawal of counsel is within the discretion of the trial judge. Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979). In the Sikes case, our supreme court found an abuse of discretion where a petition to withdraw as counsel was granted eighteen days before the date set for trial, and where there was no evidence that the new counsel seeking a continuance sought it merely to delay trial, and instead sought it because he had a conflict such that he could not try the case on the date set for trial. Id. In that case, the court also found that it had been difficult for the client affected by the withdrawal to obtain new counsel. Id.

In the case at bar, we hold that it was not abuse of discretion to deny a continuance. Appellant's situation is distinguishable from the facts in Sikes in that the present appellantfailed to accept delivery of the letter that would have notified him of the motion to withdraw. In addition, the withdrawn counsel represented to the court that he mailed a letter to appellant informing him of the accomplished withdrawal. Again, we defer to the trial judge's determination of witness credibility. Word v. Remick, supra. Upon the existing record, we cannot hold that the trial court abused its discretion in denying a continuance where appellant had the opportunity to find out about his loss of legal representation. Therefore, we affirm on this point.

II. Fraud, Damages, and Attorney Fees

Appellant also argues that the trial court erred in awarding damages to appellees based upon fraud by appellant because the evidence is insufficient. In addition, appellant asserts that the attorney fees awarded to appellees were excessive. Even though appellant failed to raise this argument below, or make appropriate objections or motions, in a nonjury trial we can reach the merits of an evidentiary insufficiency claim. See Tillery v. Evans, 67 Ark. App. 43, 991 S.W.2d 644 (1999) (holding that in a nonjury trial the failure to challenge the sufficiency of the evidence does not waive an appellant's right to do so on appeal); but see Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001) (holding that where no objections and arguments were made in a nonjury proceeding, the appellate court cannot address those issues on appeal).

In a nonjury case, we reverse a trial judge's factual determinations only if the finding is clearly against the preponderance of the evidence. See Word v. Remick, supra. Fraud is never presumed, but must be affirmatively proved by a party who alleges it and relies on it. Interstate Freeway Servs., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992). The tort of fraud or deceit consists of five elements that the plaintiff must prove by a preponderance of the evidence: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Id. The party claiming damages has the burden of proving those damages beyond speculation. Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Property owners may give their opinion of the value of the damaged property. Id. Additionally, when proving damages for property that was not a total loss, the difference in fair market value may be established by the reasonable cost of repairing the damaged property. Id.

Appellees claimed that appellant represented to them (1) that the Lexus was in excellent condition, (2) that the vehicle was not a leased vehicle, (3) that the vehicle only had 62,000 miles, and (4) that appellant would replace the windshield that was cracked. Cassie Styers testified that she told appellant that she did not desire to buy a leased vehicle. Appellant, according to Ms. Styers's testimony, stated that he was the second owner of the vehicle and had purchased it from a lady in Oklahoma. Appellant never rebutted that statement at trial. Appellees never signed any disclaimer of warranty. Notably, we defer to the trial judge's superior position to evaluate witness credibility. Word v. Remick, supra.

Therefore, we hold that appellees, plaintiffs below, met their burden of proof on fraudin the inducement. First, appellant falsely represented a material fact when he assured Cassie Styers that the vehicle was not a leased vehicle, when in fact it was. Second, appellant either knew that the representation was false or he had insufficient evidence upon which to make this representation-he obtained title from Auto Buyers and should have known. Third, appellant clearly intended to induce appellees to purchase the vehicle in question in reliance upon the representation. Fourth, appellees could not object to the title history prior to payment because appellant did not deliver title until after payment. Their reliance on appellant's representation was not unjustifiable. Fifth, damages occurred as a result of the misrepresentations. Appellees specifically did not want a lease vehicle; they wanted a car free of liens and in sound mechanical condition, as well as a repaired windshield. There was testimony stating that there were mechanical problems and that the windshield was not repaired. In addition, even though appellant argues that appellees did not prove their damages, it appears that they gave testimony of their opinion regarding the various factors of damages. Opinion testimony is permissible in this context. See Minerva Enter., Inc. v. Howlett, supra. Thus, the trial court's ruling is not against the preponderance of the evidence.

Lastly, appellant argues that the attorney fees awarded to appellees are excessive. He correctly cites case law listing various factors to determine if the fee award is indeed excessive. See Equitable Life Assur. Soc'y v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). The most relevant factors in the instant case are the fee customarily charged in the locality for similar legal services, and the nature and length of the professional relationshipwith the client. Id. Notably, these factors are merely guides. Id.

Here, the trial judge noted that the proposed amount of $2,500 in attorney fees appeared reasonable. The trial judge was familiar with the case throughout all pertinent hearings and had dealt with all pleadings, correspondence, and appearances of appellees' counsel. Therefore, the trial judge was aware of the amount of time and labor involved. He was aware of the fees customarily charged in Pulaski County. We hold that the attorney fees were not excessive.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Brief for appellant styled the case Al Cash v. Jeff Styers, but brief for appellees styled the case Al Cash a/k/a Charles Allen Cash v. Jeff Styers and Cassie Styers. Jeff and Cassie Styers were both plaintiffs below.

2 They filed the original action against Al Cash, RRRAM, Inc., one James Arrington, and Auto Buyers. However, appellees eventually nonsuited against Arrington and Auto Buyers. RRRAM, Inc., remained a party to the action until final adjudication, but does not appear to be a party on appeal.

3 Appellant does not argue any of the other requirements of Rule 64(b), and therefore, it is unnecessary to address those. They include: (2) to tender all papers etc. to the client, and (3) to refund any advance fees.