Baker v. Daves

119 S.W.3d 53, 83 Ark. App. 145, 2003 Ark. App. LEXIS 732

• Court: Court of Appeals of Arkansas
• Decided: October 1, 2003
• Docket: CA 03-136
• Status: Published

Opinions

ohn F. Stroud, Chiefjudge.

Appellant, Lisa Baker, appeals J from an order finding that she was bound by an agreement to sell a house that was conveyed to her by deed. The agreement was memorialized in the divorce decree of her mother, Eleanor Daves, and appellee, Tommy Daves. She raises two points on appeal: (1) It was error for the lower court to order appellant to sell her real property without her agreement, or, in any event, without a written agreement signed by appellant; (2) There is no consideration to appellant to support the lower court’s decision that an agreement existed between appellant and appellee. We reverse and remand.

This case originated as a divorce action between appellee, Tommy Daves, and Eleanor Daves. Appellant was not a party to the proceedings at the time of the hearing on the divorce, but she was present, serving as her mother’s witness. The property-settlement portion of the August 21, 2002 divorce decree provided in pertinent part:

This property settlement agreement is entered into by the parties herein to settle all property interests between the parties fully. For the mutual promises herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree:

III. The parties each have a one-half, undivided life estate interest in the trailer home and outbuildings on 2.2 acres located at 15830 Vimy Ridge Road, Alexander, Arkansas 72002; Lisa Baker, the Plaintiffs [Eleanor Daves’s] daughter, holds the remainder interest and tide to the property so described herein.The parties and Lisa Baker have agreed to sell the property by January 28, 2003.The Defendant [Tommy Daves] will list the property with a licensed, bonded real estate company for the fair market value of the home and the parties shall cooperate and make every good and reasonable effort to sell the property. The proceeds shall be divided equally between the Plaintiff and the Defendant with these exceptions:

b. Subject to proof, all insurance and taxes paid on the real property by Lisa Baker since the transfer of deed in March 2000 shall be repaid to Lisa Baker from the proceeds[.]

On October 29, 2002, appellee filed a motion entitled, “Motion to Add Lisa Baker as Third Party and for Contempt,” in which he alleged that appellant had initially cooperated with the property being listed for sale, but that she had since refused to do so. After the withdrawal of appellant’s initial objection to being named as a third-party defendant, the trial court granted that portion of appellee’s motion by order entered November 18, 2002, nunc pro tunc. The hearing on the contempt portion of the motion was held on November 6, 2002.

At the contempt hearing, appellant testified that she was in the courtroom, sitting on the second row, when the property-settlement agreement was read during the divorce action, but that she could not hear. She stated that she was in the hall during the negotiations leading to the agreement, but that she was not part of the negotiations. She stated that she had no representation, that she was misled and misinformed, and that she should not be forced to sell something that belongs to her to settle the Daves’s dispute. She testified that no one asked her to sign any document to sell her land and that no one asked her at the divorce hearing if she agreed to sell her property. She stated that she did not know what was in the agreement until she saw a copy of the divorce decree.

Appellee testified that he acquired the property in question in 1980 and had paid it off in April 1987, prior to marrying Eleanor Daves. He stated that appellant participated in the negotiations concerning the property-settlement agreement and that she agreed to sell the property. He also testified that before they came into the courtroom for the divorce, the two attorneys “stood there with all three of us and repeated the agreement to make sure everybody understood it.”

Tommy Glen Daves, appellee’s son, testified that he had observed appellant participate in the negotiations that preceded the divorce and that she agreed to sell the property. He stated that he was sitting on the second row in the courtroom when the agreement was read into the record, and that no one asked appellant if she agreed to it.

Thomas Yates, appellant’s brother, testified that he sat next to appellant on the second row during the divorce proceedings. He said that the attorneys told the judge “from the table area” what the agreement was and that he could not hear anything clearly. He said that he was not aware appellant would have to sell her property until he saw the divorce decree that arrived in the mail.

The record of the divorce proceedings was introduced as an exhibit. The following pertinent portion was abstracted for this appeal:

[Attorney for Eleanor Daves]: The parties have a joint life estate in 2.2 acres of property and a house on Vimy Ridge Road in Alexander, Arkansas. The parties have agreed to sell the house and 2.2 acres and split the proceeds. They have agreed that Mr. Daves will contact a real estate agency.

[Attorney for Mr. Daves, appellee]: They have a life estate. It was placed in her daughter’s name and the daughter is the title owner. She is going to cooperate in listing the property for sale.

[Attorney for Eleanor Daves]: All parties will cooperate.

[Attorney for Mr. Daves]: They are actually selling the property not just the life estate.

[Attorney for Eleanor Daves] : The daughter has agreed to sell her interest in the property as well as the life estate of the two parties.

Tommy J. Daves: I heard the agreement.

Eleanor J. Daves: I heard the agreement.

For her first point of appeal, appellant contends that she never agreed to sell the property, and that “even if some of the parties thought there was an agreement to sell the land, it cannot be enforced since it was not in writing.” Under the facts of this case, we find merit in appellant’s argument.

Arkansas Code Annotated section 4-59-101 (Repl. 2001) provides in pertinent part:

Contracts, agreements, or promises required to be in writing.

(a) Unless the agreement, promise, or contract, or some memorandum or note thereof, upon which an action is brought is made in writing and signed by the party to be charged therewith, or signed by some other person properly authorized by the person sought to be charged, no action shall be brought to charge any:

(4) Person upon any contract for the sale oflands, tenements, or hereditaments, or any interest in or concerning them[.]

(Emphasis added.)

Here, the record does not reveal any writing signed by appellant, or by any other person properly authorized by her, to sell the property in question. Moreover, the fact that appellant was present in the courtroom when the property-settlement agreement was read into the record during the Daves’s divorce proceedings is of no benefit to appellee under these circumstances. Finally, the fact that appellant was subsequently added to this case as a third-party defendant does not cure the fact that she was not a party to the divorce action on the date that the property-settlement agreement was read into the record and specifically agreed to on the record by the parties to the divorce action.

We distinguish this situation from Linehan v. Linehan, 8 Ark. App. 177, 649 S.W.2d 837 (1983), which is cited by the dissent. First, in Linehan the purported agreement involved alimony, not real property. Moreover, the stipulated agreement that was read into the record in open court was limited to the parties to the action. Furthermore, in Linehan we explained:

We are not saying that a stipulation in every instance will have the full force and effect of a binding agreement or a contractual right; but when, as here, all the rights and liabilities of the parties are covered in such a total and complete agreement, then it will not be modifiable.

8 Ark. App. at 181, 649 S.W.2d at 839. We think that the instant case is an example of the type of situation where a binding agreement was not established with respect to appellant.

In short, it is not disputed that the agreement at issue here involves the sale of real property, that appellant was not a party to the original divorce action, that she was not represented by counsel during the divorce proceedings before the trial court, and that she was not asked by the court as part of the record of the divorce proceedings if she heard the agreement and agreed to its terms.¹ Consequently, we hold that the trial court erred in con-eluding that she was bound by the terms of the agreement.

In light of our disposition of appellant’s first point of appeal, it is not necessary to address her second point.

Reversed and remanded.

Hart, Robbins, and Neal, JJ., agree. Pittman and Crabtree, JJ., dissent.

1 The dissent contends that our “primary justification for reversal is that the appellant cannot be bound by the agreement that was read into the record because she was not a party to the lawsuit,” and that this argument was not raised below nor on appeal.We merely note that our primary justification for reversal is that the statute of frauds requires that agreements concerning the sale of land, or any interest in or concerning them, must be in writing and signed by the party to be charged therewith, and that in the instant case there was no agreement concerning the sale of the property in question that was in writing and signed by appellant.

Moreover, our reliance upon the fact that appellant was not a party to the action on the date that the property-settlement agreement was read into the record, the fact that she was not represented by counsel before the bench at that hearing, and the fact that she was not asked by the court as part of the record of those proceedings if she heard and agreed to the terms, serves simply to distinguish the instant set of facts from those in the cases relied upon by the dissent.We do not consider that we have thereby gone beyond the issue raised by appellant.

Finally, the dissenting opinion contends that under our reasoning,“since appellant was not a party, she would not be bound by the agreement that was read into the record even had she expressly verbalized her agreement in open court.” Nothing could be further from the truth. It is precisely because we believe that she could have been bound by the agreement if she had expressly verbalized her agreement in open court that we emphasized and relied upon the fact that she did not.