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Inc. v. DJ Mart, LLC

Court of Appeals of Arkansas, Division II

May 29, 2019

LONE’S RT 92, INC., Appellant
v.
DJ MART, LLC, and Daljit Singh, Appellees

Page 770

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH Division [NO. 60CV-18-784], HONORABLE TIMOTHY DAVIS FOX, JUDGE

         Davidson Law Firm, Little Rock, by: Stephen L. Gershner, for appellant.

          One brief only.

         OPINION

         WAYMOND M. BROWN, Judge

          Appellant appeals from the circuit court’s order granting the appellees’[1] rescission counterclaim, thereby returning to them their $ 96,000 down payment for the subject property, a gas station. On appeal, appellant argues that the circuit court clearly erred in finding that it committed (1) fraud by omission by failing to disclose (a) unpaid real estate taxes and (b) the real status of the inoperability and disrepair of the gas pumps, and (2) misrepresentation. Additionally, it argues that it properly terminated the contract. We affirm.

         On August 30, 2017, appellee Daljit Singh met with Noor Ali as representative for AAN, Inc. (AAN),[2] at the gas station to discuss a potential sale or lease of the same. Singh and Sohail Cheema— who was the assistant to appellant’s owner, Mohammad Lone, and the agent for appellant and AAN— met on September 1, 2017. During that time they agreed to the general terms

Page 771

of contract for the sale of the gas station. Singh made an earnest money deposit in the amount of $ 16,000 to appellant, through Cheema, at that meeting.

         The parties entered into a contract on September 8, 2017. The gas station was purchased "as it is[.]" It was purchased for $ 640,000 with a down payment of $ 96,000[3] acknowledged as having been received by appellant, thereby leaving a balance of $ 544,000 remaining. The remaining balance was to be paid in installments of $ 4,889.63 monthly through October 1, 2032. One provision in the contract stated:

The [appellees agree] to keep and maintain the premises and the improvements thereon in a clear and orderly condition at all times, free of waste or destruction, and to make all necessary repairs thereon to keep the premises in a good and habitable condition at all times during this contract. The standard of maintenance to which the [appellees agree] to maintain the premises is the highest state of repair, which the same has been or may be at any time during the period of this contract.

          A provision on taxes stated that "[t]he Seller agrees to pay all taxes that come from this contract date forward for the year 2017 on the aforesaid property, and the Buyer agrees that the Buyer will pay the taxes for all subsequent years thereon." The contract’s default provision stated that:

In the event that the Buyer should default in making the payment or in keeping the covenants on Buyer’s part to be made and kept hereunder, and should a default in the making of any payment continue for a period of thirty (30) days from the date when such payment hereunder is due, the Seller may, at Seller’s option, declare this contract to be thereupon terminated and forfeited by giving notice of Seller’s election so to do to the Buyer at Buyer’s telephone book or last known address. Thereupon, Buyer agrees that Buyer will promptly and forthwith vacate the premises and return possession thereof to the Seller without additional notice. To accommodate the agreement herein made to that effect, the Buyer hereby waives any and all notice to which Buyer may be entitled under the Laws of the State of Arkansas as a prerequisite to a suit against the Buyer for the unlawful detention of the property. Upon such a default by the Buyer and an election of the Seller to terminate this contract, the amounts theretofore paid by the Buyer to the Seller shall be retained by the Seller as liquidated damages for the breach of this agreement by the Buyer and as a reasonable rental for the property during the period of time when the same has been occupied pursuant to this contract by the Buyer.

          On February 8, 2018, appellant filed a complaint in unlawful detainer asserting that it received appellees’ last payment in November 2017, and that appellees had since "unlawfully failed and refused to quit possession" of the property despite being requested to do so. It also asserted that appellees had failed to operate its business in a proper manner. Accordingly, appellant sought monetary damages in the form of payment of the monthly installments for all months appellees remained in possession of the property. Appellant ...


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