MICHAEL R. MORRIS APPELLANT/CROSS APPELLEE
NICKOLAS KNOPICK APPELLEE/CROSS APPELLANT
MARIE HADZIMA CROSS-APPELLEE
FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CV-08-112]
HONORABLE JOHN R. PUTMAN, JUDGE
Ethredge & Copeland, P.A., by: Johnnie A. Copeland, for
S. Tschiemer, for appellee.
M. GLOVER, Judge
appeal primarily pertains to the conveyance of a Matco
toolbox and tools. The transfer of
these items was included as a term of a real-estate contract
entered into by buyer Margaret Conti and seller Michael
Morris. Although the contract was signed by Conti and Morris,
the negotiations were between Morris and Conti's son,
Nickolas Knopick. The litigation commenced with Conti suing
Morris, but Knopick was eventually substituted for Conti by
agreement of the parties. Following a bench trial, the trial
court ordered Morris to pay Knopick $92, 000 in damages. Both
Morris and Knopick appeal.
Morris listed for sale a house and thirty acres of land in
Baxter County, Arkansas. He initially listed the property
with Century 21 Realty. While the property was listed with
Century 21, Nickolas Knopick toured the house with a realtor
from Lake River Land Realty; he had an exclusive-buyer agency
agreement with Lake River Land Realty that ran from June 20,
2007, until December 31, 2007.
Morris's listing with Century 21 expired, he and Knopick
entered into negotiations regarding the sale of the property.
The parties dispute the relevant facts surrounding the
negotiations. However, the negotiations culminated with
Morris entering into a contract with Margaret Conti,
Knopick's mother, for the sale of the house, surrounding
acreage, and specific items of personal property-the most
important items for the purposes of this appeal being a set
of Matco tools and a tool box-on November 26, 2007. The
purchase price was $863, 060. Conti never visited the
property prior to the sale. A local realtor, Marie Hadzima,
represented both Morris and Conti in the transaction.
contends that the $863, 060 offer was made in reliance on
Morris's statements that the tools and the tool box being
sold with the property were worth $150, 000. The real-estate
contract included a provision for the transfer of a Matco
toolbox and tools with a $100, 000 value placed on the tools.
After the transaction closed, Knopick determined that the
tools transferred in the sale were worth significantly less
than $100, 000.
sued Morris to rescind the agreement or, alternatively, for
damages, claiming that she was supposed to receive a Matco
tool box, $150, 000 worth of tools, wicker furniture, a
washer and dryer, and a nightstand in the transaction. She
later amended her complaint, naming Hadzima as a party and
suing her for negligence. Additionally, Nickolas Knopick was
allowed to intervene as a necessary party.
trial was held on the issues pertaining to the transfer of
the tools and the toolbox, At the beginning of the trial,
counsel for Knopick announced that Knopick was the real party
in interest and that the parties agreed that Knopick would be
substituted for Conti. Following the trial, the court
prepared and entered a judgment in favor of Knopick and
awarded him $92, 000 in damages against Morris. The judgment
also dismissed Knopick's negligence claim against
Hadzima. Both Knopick and Morris timely appealed the trial
court's judgment. Our court dismissed the first appeal
without prejudice because the trial court's judgment
failed to adjudicate issues regarding the transfer of the
wicker furniture, the washer and dryer, and the nightstand.
our court's dismissal of the appeal, the parties returned
to the trial court and a supplemental judgment was entered
dismissing with prejudice Knopick's claims regarding the
wicker furniture, the washer and dryer, and the nightstand.
Morris and Knopick timely appealed from the judgment and
supplemental judgment. Also following the entry of the
supplemental judgment, Knopick filed a motion for new trial
that was deemed denied. Knopick filed an amended notice of
cross-appeal from the deemed denial. Additionally, Knopick
filed a motion for attorney's fees and costs requesting
attorney's fees for both the trial work and the work done
in the first appeal. The trial court granted the request for
attorney's fees and costs from the trial work, but it
refused to rule on the request for work done in the first
appeal. Instead, the court directed the attorneys to brief
the issue of whether attorney's fees for appellate work
was proper and announced that it would rule on this portion
of the motion after the briefing was completed. From this
order, Knopick filed a second amended notice of appeal to
challenge the trial court's denial of his request for
attorney's fees and costs for appellate work.
Issues on Appeal
direct appeal, Morris argues that (1) the trial court erred
by finding that the parties had a contract and then failing
to apply the terms of the contract; (2) there was no
justifiable reliance by Knopick or Conti; (3) Morris did not
make misrepresentations actionable as fraud; (4) neither
Knopick nor Conti suffered damages caused by any alleged
misrepresentation, and (5) Knopick is barred from recovery
because of unclean hands.
cross-appeals, arguing that the trial court erred by (1)
failing to grant rescission and restitution; (2) failing to
find fraud and award compensatory and punitive damages; (3)
failing to find Hadzima negligent; (4) denying his motion for
new trial; and (5) denying his motion for attorneys' fees
and costs for work done in the first appeal.
preliminary matter, we must address a jurisdictional issue
raised by Knopick. He contends that this appeal must again be
dismissed for lack of finality-this time because the trial
court has not adjudicated all of the claims as they pertain
to Conti. Specifically, Knopick argues that Conti's
rescission claim has not been adjudicated. This argument is
without merit. The trial court's judgment disposes of the
also argues that the trial court improperly substituted him
for Conti. This argument is similarly unpersuasive. Knopick
first raised this argument in a motion for new trial. An
objection first made in a motion for new trial is not timely.
Cochran v. Bentley, 369 Ark. 159, 251 S.W.3d 253
(2007). A party cannot wait until the outcome of the case to
bring an error to the trial court's attention.
Id. at 175, 251 S.W.3d at 267. Here, not only did
Knopick fail to challenge the substitution, he agreed to it
and his counsel announced the agreed substitution to the
court. It is logical that he waived any potential defect
regarding his substitution by his consent to proceed with the
Morris's Direct Appeal
jurisdiction established, we turn to Morris's arguments
on direct appeal. Morris challenges several of the trial
court's findings, and we evaluate the trial court's
findings using a clearly erroneous standard of review.
Poff v. Peedin, 2010 Ark. 136, 366 S.W.3d 347.
argues that the trial court erred by determining that he and
Knopick had a contract and then by not applying the terms of
the contract. First, Morris contends that the trial court
erred in finding a contract between Knopick and him. However,
the parties agreed to Knopick's substitution for Conti,
and with that substitution, Conti's claims became
Knopick's to pursue. Additionally, Morris did not develop
this argument before the trial court; thus, he is precluded
from doing so here. Kulbeth v. Purdom, 305 Ark. 19,
805 S.W.2d 622 (1991). Accordingly, we affirm the trial
court's finding of a contract.
whether the trial court failed to apply the terms of the
contract requires a review of the contract itself. Morris
bases his argument on the premise that the contract provision
that the buyer will not rely on any warranties,
representations, or statements of the seller controls.
However, the contract also includes a specific, handwritten
provision stating that the sale included the transfer of a
Matco toolbox and tools with a $100, 000 value placed on the
the duty of the courts to enforce contracts as they are
written and in accordance with the ordinary meaning of the
language used and the overall intent and purpose of the
parties. Hancock v. Tri-State Ins. Co., 43 Ark.App.
47, 858 S.W.2d 152 (1993). "In seeking to harmonize
different clauses of a contract, we should not give effect to
one to the exclusion of another even though they seem
conflicting or contradictory, nor adopt an interpretation
which neutralizes a provision if the various clauses can be
reconciled." RAD-Razorback Ltd. P'ship. v. B.G.
Coney Co., 289 Ark. 550, 554, 713 S.W.2d 462, 465
(1986). When a contract contains general and specific
provisions relating to the same subject, the specific
provision controls over more general terms. Taylor v.
Hinkle, 360 Ark. 121, 200 S.W.3d 387 (2004). We conclude
that the provisions of the real-estate contract can be read
harmoniously. The alleged value of the tools was reduced to
writing and included as a term of the contract. This specific
provision controlled over the more ...