Cite as 2024 Ark. App. 330

ARKANSAS COURT OF APPEALS

DIVISION I

No. CV-22-371

DARRELL SMITH, JR., SUCCESSOR 

TRUSTEE OF THE SMITH FAMILY 

TRUST; AND COLE SMITH, 

EXECUTOR OF THE ESTATE OF 

DARRELL SMITH, SR., DECEASED

APPELLANTS/CROSS-APPELLEES

V.

TERRY ORSBUN AND CHRISTINE 

ORSBUN

APPELLEES/CROSS-APPELLANTS

Opinion Delivered May 22, 2024

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[NO. 17CV-21-92]

HONORABLE CANDICE A. SETTLE, 

JUDGE

AFFIRMED ON DIRECT APPEAL; 

AFFIRMED ON CROSS-APPEAL

RITA W. GRUBER, Judge

This interlocutory appeal arises out of a real-estate-transaction dispute concerning a 

house and approximately three acres located in Crawford County. Appellants are Darrell 

Smith, Jr., successor trustee of the Smith Family Trust (the Trust); and Cole Smith, executor 

of the estate of Darrell Smith, Sr., deceased (the Estate). Appellees are a married couple, 

Christine and Terry Orsbun. Appellants bring this appeal from (1) the February 18, 2022 

rulings denying their motions for directed verdict; (2) the March 18, 2022 order and 

judgment and the April 19, 2022 amended order and judgment; (3) the May 16, 2022 order 

awarding attorney’s fees and costs; and (4) the May 27, 2022 order of contempt. 

Appellants state five points on appeal with multiple arguments in support of each. 

However, we address their points and arguments in three broad categories: contract 
2

formation and enforcement, attorney’s fees, and contempt. Appellants contend that the 

contract they were ordered to specifically perform was not properly formed and cannot be 

enforced—raising issues of merger, parol evidence, the statute of frauds, lack of a meeting 

of the minds, lack of consideration, standing, and impossibility of performance. Appellants 

also take issue with the attorney’s fees and costs awarded to appellees as well as the contempt 

finding made against them and the accompanying daily penalty. On cross-appeal, appellees 

contend that the circuit court erred by not awarding them an equitable credit for the 

deprivation of the use of the at-issue property. We affirm. 

I. Background

On March 15, 2021, appellees filed suit against appellants and Darrell, Smith Jr., 

individually (Smith Jr.).

1 Appellees alleged that a contract existed between them, the Trust,

and Darrell Smith, Sr. (Smith Sr.), for the sale of the at-issue property in exchange for 

$291,000. The at-issue property consists of a house and the one acre upon which it sits (the 

house property) and an adjacent and additional approximate two acres (the bluff property).

Prior to Smith Sr.’s death, the house property was owned by the Trust, of which Smith Sr. 

was the sole trustee, and the bluff property was owned by Smith Sr. personally. Appellees 

further alleged that the contract was comprised of three documents: the residential “Real 

Estate Contract” (REC), the “Seller’s Counter to the Real Estate Contract” (counter), and 

the “General Addendum” (GA) with the referenced survey portion attached. The REC, 

counter, and GA were attached to the complaint. Appellees claimed that the contract was 

breached on February 22, 2021, when appellants and Smith Jr. failed to close on the sale of 

1Smith Jr. was dismissed as a party from the lawsuit on April 8, 2021. 
3

the house property and the bluff property. Appellees requested that the circuit court order 

the specific performance of the contract and award additional damages caused by the delay 

of the closing as well as attorney’s fees and costs.

On April 5, 2021, the Trust answered appellees’ complaint, asserting that any 

contract that existed was between only it and appellees and was for the sale of the house

property only in exchange for the $291,000. On April 19, the Estate answered appellees’ 

complaint, denying that it was a party to the contract and further denying that the bluff 

property was subject to the contract that existed between appellees and only the Trust. On 

August 11, appellants filed a third-party complaint against Chuck Fawcett Reality, Inc. 

(Fawcett Realty); Linda Black, as an agent and employee of Fawcett Realty; and Tammy 

Best, as an agent and employee of Fawcett Realty (collectively the Fawcett parties).

2 On 

September 1, the Fawcett parties filed a counterclaim against appellants.

A bench trial was held on February 17 and 18, 2022. Appellees introduced twentythree exhibits as well as the testimony of realtor Tammy Best (twice); professional land 

surveyor Ricky Hill; certified general real estate appraiser Angela Hartwig; real estate broker 

and owner of Chuck Fawcett Realty, Inc., Chuck Fawcett; BHC Insurance customerservice representative Jill Swad; roofer Tyler Reeves; Eddie Tunchez with ET Construction; 

Terry Orsbun; Smith Jr.; and real estate broker James Vitale. Appellants then moved for 

directed verdict multiple times, making the same arguments they do on appeal, and each

motion was denied in turn. Appellants then put on their case-in-chief, introducing fourteen 

exhibits and the testimony of Tina Stephenson, closing department manager at Waco Title; 

2The Fawcett parties are not parties to this appeal.
4

Tracy Wilhelm, a mortgage loan supervisor with Arvest Bank; James Vitale, real estate 

broker; Linda Black, a real estate agent with Chuck Fawcett Realty, Inc.; and Sandra Hiener, 

Crawford County tax assessor. Appellants renewed their motions for directed verdict, which 

were denied. The parties gave closing arguments, and the court requested proposed findings 

of fact and conclusions of law from the parties. 

On March 9, 2022, the circuit court issued a letter to the parties setting out its rulings 

and directing appellees’ counsel to prepare the order and judgment, including proposed 

findings of fact and conclusions of law that support the court’s decision. On March 10, 

proposed findings of fact and conclusions of law were submitted by both appellants and 

appellees, to which appellants objected on March 16. 

On March 18, 2022, the circuit court’s order and judgment with findings of fact and 

conclusions of law was entered. The court concluded that a contract existed that was 

comprised of the REC, the counter, and the GA; that the contract satisfied the statute of 

frauds; and that the contract was for the sale of the house property and the bluff property in 

exchange for $291,000, which did not evidence a lack of consideration. The court found 

that there were two sellers—the Trust and Smith Sr.—and the contract was binding on 

appellees, the Trust, and Smith Sr. (now the Estate). The court did so having found that the 

counter delineated “Smith Family Trust / Darrel Smith” as the seller; that Smith Sr. was the 

trustee of the Trust; and that Smith Sr. signed the counter but did not designate any specific 

capacity in which he was signing.

The court further concluded that the death of Smith Sr. did not affect the material 

terms of the contract but rather the manner in which the contract had to be executed. The 
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court found that Smith Jr., as the successor trustee of the Trust, was authorized to act on 

behalf of the Trust if Smith Sr. was not able to do so; that prior to Smith Sr.’s passing, a 

valid power of attorney (POA) existed permitting Smith Jr. to transfer real estate on behalf 

of Smith Sr.; and that Smith Jr. signed the GA prior to Smith Sr.’s death, as evidenced by 

documents entered into evidence. The court also found unpersuasive appellants’ argument 

regarding an unsatisfied condition precedent with respect to the appraisal value of the 

property and appellees’ financing. The circuit court concluded that appellants had breached 

the contract by refusing to close the transaction. The court ordered appellants to specifically 

perform the contract by conveying the house property and the bluff property for the 

purchase price, less equitable credits for $22,929.61 in repairs to the house; $1416 in storage 

fees; $12,000 in rent; and $2400 in moving expenses. The order denied appellees’ request 

for an equitable credit due to the deprivation of the use of the property. The court further 

ordered that closing occur not more than twenty-one days after the entry of the order and 

judgment. 

On March 30, 2022, appellees filed a motion requesting $49,027.50 in attorney’s fees 

and $1920 costs, a total of $50,947.50, to which appellants responded. On April 14, appellees 

filed a motion to show cause, setting out that despite the court’s March 18, 2022 order to 

close the real estate transaction within twenty-one days of entry of that order—April 8—

appellants refused to do so at the scheduled April 5 closing. 

On April 15, 2022, appellants filed their first notice of appeal setting out that they 

were appealing the March 18, 2022 order and that the appeal was interlocutory and being 
6

taken pursuant to Ark. R. App. P.–Civ. 2(a)(6).3 That same day, appellees’ counsel sent a 

letter to the court requesting a Rule 54(b) certification and submitting a new proposed 

order. On April 19, the order granting the motion to show cause was entered, ordering the 

Trust and the Estate to appear before the court on May 9 to show cause why each should

not be held in contempt of court. Also on April 19, an amended order and judgment was 

also entered, which was substantively identical to the March 18, 2022 order and judgment 

except for the addition of the Rule 54(b) certificate. Appellants objected to the amended 

order on April 19. 

On April 21, 2022, the Estate responded to appellees’ motion to show cause,

admitting its refusal to close but arguing that it had filed a notice of interlocutory appeal and 

had objected to the requirement that the closing occur within twenty-one days. It 

contended that the circuit court did not have the authority to remove Cole Smith as the 

executor of the Estate and that the order and judgment entered by the court was not a final,

appealable order; thus, the circuit court could not enforce it pending resolution of the thirdparty claims involving the Fawcett parties. The Estate requested for the first time that the 

matter be stayed during the pendency of the appeal. That same day, the Trust responded to 

appellees’ motion to show cause, contending that the court did not have the authority to 

3This subsection permits an interlocutory appeal regarding injunctive relief, and the 

order and judgment stated that appellees were “entitled to a mandatory injunction requiring 

[the Trust and the Estate] . . . to specifically perform the contract.” Moreover, appellees 

characterized their request for specific performance as a “mandatory injunction.” However, 

specific performance is its own kind of relief, separate and apart from injunctive relief. See,

e.g., Hyde Vending Co. v. Wayne Poultry Co., 252 Ark. 355, 361, 479 S.W.2d 250, 255 

(1972); McDaniel v. Orner, 91 Ark. 171, 173, 120 S.W. 829, 830 (1909). This distinction 

does not affect our analysis. 
7

remove Smith Jr. as the trustee of the Trust; its other arguments were identical to those 

made by the Estate in its response. 

On May 12, 2022, appellees filed an amended motion to show cause regarding 

appellants’ refusal to close the real estate transaction per the court’s order. On May 16, an 

order was entered awarding appellees $32,500 in attorney’s fees and $520.50 in costs. On 

May 27, the order of contempt and for supersedeas bond was entered, the court having 

found appellants in contempt for failing to comply with its order to close or seeking a stay 

in a timely manner. That order mandated that appellants pay a daily fine of $250 for their 

contempt until a supersedeas bond was posted or a closing occurred. Appellants’ request for 

stay was granted conditioned upon their posting a $50,000 supersedeas bond.

On August 3, 2022, appellants filed a motion to stay enforcement of judgment and 

remission of daily penalties with this court, requesting that we stay the order of contempt

and thus stop the accrual of any further penalties. On August 5, appellees responded to that 

motion, contending that the motion was unnecessary given the plain language of the circuit 

court’s contempt order and the posting of the bond. Appellees further responded that this 

court had no authority to forgive any of the already accrued penalties. On August 24, 2022, 

we granted appellants’ request to stay the enforcement of the judgment and passed the 

request for remission of the daily penalties until the case is submitted.

II. Direct Appeal

We now address appellants’ points and arguments in three broad categories: contract 

formation and enforcement, attorney’s fees, and contempt. Where land is the subject of an 

agreement, a party to the agreement is entitled to specific performance. Elder Constr. Co. v.
8

Ivey Lane, LLC, 2010 Ark. App. 10, at 7, 370 S.W.3d 861, 865. Specific performance is an 

equitable remedy that compels performance of a contract on the precise terms agreed upon 

by the parties. Id. at 3, 370 S.W.3d at 864. Because specific performance is grounded in 

equity, circuit courts “have some latitude of discretion in granting or denying that relief, 

depending upon the inequities in a particular case.” Flippen v. Jones, 2011 Ark. App. 191, at 

6, 382 S.W.3d 695, 698. We review equity cases de novo on the record but will not reverse 

a finding by the circuit court unless it is clearly erroneous. Elder Constr. Co., 2010 Ark. App. 

10, at 4, 370 S.W.3d at 864. Whether specific performance should be awarded in a particular 

case is a question of fact for the circuit court. Id. On appeal, the question before us is whether 

the court’s decision to grant specific performance was clearly erroneous. Id. In reviewing 

the circuit court’s findings of fact, we give due deference to the circuit court’s superior 

position to determine the credibility of witnesses and the weight to be accorded to their 

testimony. Id.

In civil bench trials, the standard of review on appeal is whether the circuit court’s 

findings were clearly erroneous or clearly against a preponderance of the evidence. Peregrine

Trading, LLC v. Rowe, 2018 Ark. App. 176, at 1, 546 S.W.3d 518, 520. A finding is clearly 

erroneous when, although there is evidence to support it, the reviewing court, on the entire 

evidence, is left with a firm conviction that a mistake has been committed. Id. at 1–2, 546 

S.W.3d at 520. 

A. Contract Formation and Enforcement

Appellants’ first and second points on appeal take issue with the circuit court’s oral 

rulings as well as the order and judgment determining that an enforceable contract existed 
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for the sale of the house property and the bluff property. Specifically, appellants contend 

that the circuit court erred in denying their motions for directed verdict and in entering 

judgment for appellees because no enforceable contract was formed. In support of that 

contention, appellants argue that (1) negotiations do not create a contract and are merged 

into the final document; (2) the terms were certain that there was no additional acreage, so 

parol evidence may not add to them; (3) there was no meeting of the minds; (4) the statute 

of frauds bars unsigned additions to the document; (5) impossibility of performance bars the 

claims; and (6) even if the parties later agreed to add realty, there was no additional 

consideration paid. Appellants’ second point on appeal is that there was no contract because 

appellants lacked standing to sell the property. 

In a civil bench trial, we treat a defendant’s motion for “directed verdict” as a motion

to dismiss. Phillips v. Denton, 2018 Ark. App. 90, at 5, 543 S.W.3d 508, 511; see also Ark. 

R. Civ. P. 50. In determining whether such a motion should have been granted, we review 

the evidence in the light most favorable to the nonmoving party, giving the evidence its 

highest probative value, taking into account all reasonable inferences deducible from it. 

Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). The

motion should be granted only if there is no substantial evidence to support a verdict in the 

nonmoving party’s favor. Id. When the evidence is such that fair-minded persons might 

reach different conclusions, then a factual question is presented, which requires reversal. Id.

The standard is the same in a bench trial where the court acts as the fact-finder. Peregrine

Trading, LLC, 2018 Ark. App. 176, at 15, 546 S.W.3d at 527. 
10

On this record, there was certainly substantial evidence to move beyond the motionto-dismiss stage. And ultimately, as discussed more fully below, each point appellants raise 

to attack the validity of the contract is meritless. As an initial issue, the cases cited by 

appellants merely set forth our standards regarding contract formation and enforcement and 

do not support their specific arguments. The essential elements of a contract are competent 

parties; subject matter; legal consideration; mutual agreement; and mutual obligation. Terra

Land Servs., Inc. v. McIntyre, 2019 Ark. App. 118, at 12, 572 S.W.3d 424, 432. A court 

cannot make the parties’ contract but instead can only construe and enforce the contract the 

parties have made. Id. There must be a meeting of the minds using objective indicators to 

have a valid contract. Id. Whether there is a meeting of the minds is a question of fact. Id.

Whether a binding contract exists is a question of law. Smith v. Prudential Prop. & Cas. Ins.

Co., 340 Ark. 335, 336, 341, 343, 10 S.W.3d 846, 847, 850 (2000). The words in a 

document must be construed as written, using ordinary meanings. First Nat’l Bank of Crossett 

v. Griffin, 310 Ark. 164, 169, 832 S.W.2d 816, 819 (1992). 

The parol-evidence rule prohibits the introduction of extrinsic evidence that is 

offered to vary the terms of a written agreement; it is a substantive rule of the law, and its 

premise is that the written agreement itself is the best evidence of the intention of the parties. 

Hurt-Hoover Invs., LLC v. Fulmer, 2014 Ark. 461, at 11, 448 S.W.3d 696, 703. On the other 

hand, the parol-evidence rule does not prohibit the introduction of extrinsic evidence if it 

would aid the court in interpreting the meaning of particular language of a contract. Id. Nor 

does the parol-evidence rule prohibit the court’s acquainting itself with the circumstances 

surrounding the making of the contract. Id. at 11–12, 448 S.W.3d at 703. On appeal, we 
11

will not reverse the circuit court’s ruling on the admission of evidence absent an abuse of 

discretion. Id. at 12, 448 S.W.3d at 703. Abuse of discretion is a high threshold that does 

not simply require error in the circuit court’s decision but requires that the circuit court act 

improvidently, thoughtlessly, or without due consideration. Id.

To be enforceable, a contract for the sale of land must comply with the statute of 

frauds, Arkansas Code Annotated section 4-59-101. Boensch v. Cornett, 267 Ark. 671, 673–

74, 590 S.W.2d 55, 56–57 (1979). This requires the memorandum to be in writing, to be 

signed by the party to be charged or signed by some other person properly authorized by 

the person sought to be charged, and to contain all the essential terms. Id. A description of 

the land to be conveyed is an essential term. Id. While extrinsic evidence may not be used 

to add to or change a deficient description, it may be used to decipher or make intelligible 

the terms of the contract or clarify the description of the land. Id. The meaning of the 

description becomes plain and certain when the circumstances surrounding the negotiations 

and writing are disclosed. See, e.g., Boensch, supra. 

The law of impossibility has evolved into a broader and more equitable rule of 

impracticability. Smith v. Decatur Sch. Dist., 2011 Ark. App. 126, at 4–5. Impracticability of 

performance may excuse a party from performing contractual obligations. Id. The burden 

of proving impossibility of performance rests upon the party alleging it. Id. It must be shown

that virtually every action within the person’s power to perform the duty under the contract

was taken and that the thing to be done cannot be effected by any means. Id. Resolution of 

the question requires an examination into the conduct of the party pleading the defense to

determine the presence or absence of fault on his part in failing to perform. Id. Our supreme 
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court has drawn a distinction between objective impossibility, which amounts to saying “the 

thing cannot be done,” and subjective impossibility, “I cannot do it.” Id. It is only in cases 

of objective impossibility that performance is excused. Id.

The question of standing is a matter of law for this court to decide, and this court 

reviews questions of law de novo. Grand Valley Ridge, LLC v. Metro. Nat’l Bank, 2012 Ark. 

121, at 9, 388 S.W.3d 24, 31. Whether an agent is acting within the scope of his actual or 

apparent authority is a question of fact for the fact-finder to determine. Found. Telecomms.,

Inc. v. Moe Studio, Inc., 341 Ark. 231, 240, 16 S.W.3d 531, 537 (2000).

Against these many standards, we are not left with a firm conviction that the circuit 

court made a mistake or abused its discretion. First, the circuit court did not err in finding

that the contract consisted of three written documents that when taken together formed a 

single agreement. Those three documents are the REC, the counter, and the GA with the 

referenced attached survey portion, each of which was admitted into evidence and is a

completed Arkansas Realtors Association Form.

The REC contains a merger clause that states, 

This [REC] . . . when executed by both Buyer and Seller, shall contain the entire 

understanding and agreement between Buyer and Seller with respect to all matters 

referred to herein and shall supersede all prior and contemporaneous agreements, 

representations, discussions and understandings, oral or written, with respect to such 

matters. This [REC] . . . shall not supersede any agency agreements entered into by 

Buyer or Seller and Listing Firm or Selling Firm.

A merger clause in a contract, which extinguishes all prior and contemporaneous 

negotiations, understandings, and verbal agreements, is simply an affirmation of the parolevidence rule. Altice USA, Inc. v. Johnson, 2023 Ark. App. 120, at 11, 661 S.W.3d 707, 716. 

The REC also has a “counterparts” provision, which specifically states that the REC “may 
13

be executed in multiple counterparts each of which shall be regarded as an original thereof 

but all of which together shall constitute one in the same.”

Per the plain language of the counter: “all other terms as provided in the [i]nitial 

[REC] . . . are incorporated herein by reference and shall remain exactly as set forth therein, 

solely except those amended above.” Regarding “counterparts,” the counter states that 

“[t]his Seller’s Counter Offer to the [REC] . . . may be executed in multiple counterparts 

each of which shall be regarded as an original hereof but all of which together shall constitute 

one in the same.” The GA states that “upon its execution by both parties, [the GA] 

incorporates by reference all provisions of the above-referenced Contract/Agreement not 

expressly modified herein.” The GA expressly permits the agreement to be executed in 

multiple counterparts, which taken together, will constitute the entire agreement.

Second, the entirety of the agreement reflects that the subject of the contract was the 

house property and the bluff property, and the parties to the contract were the Trust and 

Smith Sr. The REC, executed by appellees on December 24, 2020, reflects that appellees 

made an offer to purchase a “single family detached home with land” located at 805 N. 16th

Street in Van Buren, Arkansas, for the sum of $274,000. The “full legal description” set 

forth in the REC is: “home and approximately 1.02 acres. PT NW SE NW S-T-R=19-9-

31 parcel number = 700-08200-000. Complete legal to be determined by survey.” 

Paragraph “11. Survey” states the following: 

Buyer has been given the opportunity to obtain a new certified survey. Should Buyer 

decline to obtain a survey as offered in Paragraph 11A of this Real Estate Contract, 

Buyer agrees to hold Seller, Listing Firm and Selling Firm involved in this Real Estate

Contract harmless of any problems relative to any survey discrepancies that may exist 

or be discovered (or occur) after Closing. 
14

Underneath that provision, the REC provides that “[a] new survey satisfactory to Buyer, 

certified to Buyer within thirty (30) days prior to Closing by a registered land surveyor, 

showing all improvements, easements and any encroachments will be provided and paid for

by:”, and a box next to the word “seller” is checked. The REC reflects that the seller was 

the Trust. 

The two-page counter and the two-page GA were also created on December 24.

The first page of the counter reflects a purchase price of $291,000, a closing date of February

22, 2020, and appellees as the buyer. It further reflects “Smith Family Trust” as the seller, 

and the property being sold as “805 N. 16th St., Van Buren, Arkansas 72956 Sebastian 

County.” But the second page of the counter identifies the seller in print as “Smith Family 

Trust / Darrel Smith.” On December 27, 2020, the counter was signed by Smith Sr., and 

there is no designation regarding what capacity, if any, Smith Sr. was executing the counter.

It was also electronically signed by appellees that same day.

The first page of the GA reflects the property being conveyed as “805 N. 16th Street, 

Van Buren, Arkansas 72956 Crawford County.” The GA reflects appellees as the buyer, and 

“Smith Family Trust Darrell Smith” as the sellers. The GA states that

the undersigned Buyer/Lessee and Seller/Lessor in consideration for the covenants, 

agreements and promises made below and other good and valuable consideration, 

receipt and sufficiency being acknowledged, agree as follows: 

Attachment A-New Legal Property description.

The “Attachment A-New Legal Property description” language was filled into the GA form. 

Attached to the GA is a portion of the survey that contains a legal description reflecting that 

the new legal property description consists of a total 2.93 acres. The GA further states that 
15

“upon its execution by both parties, [the GA] incorporates by reference all provisions of the 

above-referenced Contract/Agreement not expressly modified herein.” The GA was drafted 

by Smith Sr.’s real estate representatives. 

The circuit court found that the three documents, including the referenced attached 

survey portion, together make clear that the contract was for the sale of the house property

and the bluff property. The REC reflects an offer to purchase a “home and approximately 

1.02 acres,” with a complete “legal to be determined by survey.” The second page of the 

GA clearly incorporates the attached survey, which contains a legal description of the total 

2.93 acres. The GA is plain and unambiguous and clearly brings the bluff property into the 

contract. Thus, we hold that the circuit court did not err in finding that a meeting of the 

minds occurred such that there was a contract and that the contract included the sale of the 

bluff property.

Resorting to parol evidence was not necessary here. Many witnesses provided 

testimony explaining why the GA and attached survey were created—to incorporate a legal 

description of both the house property and the bluff property—as well as why the REC, 

counter, and GA provide as they do. Such testimony is permitted because the parol-evidence 

rule does not prohibit the admission of extrinsic evidence to explain what terms mean or to 

acquaint the court with the circumstances surrounding the making of the contract. HurtHoover Invs., LLC, 2014 Ark. 461, at 11, 448 S.W.3d at 703. Here, Certainly, there was no 

testimony that the contract was not to have included the bluff property. In fact, Smith Jr. 

testified that his father had not involved Smith Jr. in his personal, financial, or real estate 

matters since Smith Sr. had retired. Smith Jr. testified further that he did not know Smith 
16

Sr. had previously listed the house property and the bluff property for sale; he did not know 

about the current real estate contract and counteroffer or that the seller was the Trust; and 

he did not know that Smith Sr. had already sold a piece of the bluff property. Best testified 

that Smith Sr., who was “sharp,” specifically told her she was not to speak to Smith Jr. about 

the sale of the property. There was testimony explaining what the descriptors of the property 

being sold meant and how the various parcel IDs came into existence.4 For example, Sandra 

Hiener, the Crawford County tax assessor, testified that the parcel ID number on the 

REC—700-08200-000—is a number for the “whole” that her office creates to split other 

parcels from—and that the 700-08200-000 number included all of Smith Sr.’s properties, 

which necessarily included the bluff property. Accordingly, we hold that the circuit court 

did not abuse its discretion in permitting the testimony it did, which, in totality, explained 

the terms of the contract and the circumstances that gave rise to it.

A contract exists that provides that in exchange for $291,000, the house property and

the bluff property will be conveyed to appellees. The contract is in writing and contains all 

the essential terms, including a description of the land to be conveyed, and those terms are 

certain. Thus, with respect to appellants’ argument that the statute of frauds was not satisfied, 

4The record reflects that multiple parcel numbers were associated with property 

owned by Smith Sr.: parcel ID 700-08200-000, which Heiner testified her office created as 

the “main parcel” from which they would split off other parcels; parcel ID 700-08200-002, 

which consisted of 3.14 acres and was ultimately “cancelled” as a result of a May 2020 replat; 

parcel ID: 700-08200-101, consisting of approximately 1.98 acres and referred to as 

Parkview Tract 1—the two additional acres at issue here; and parcel ID 700-08200-102, 

consisting of approximately 1.07 acres and referred to as Parkview Tract 2. Smith Sr. sold 

Parkview Tract 2 in August 2020.
17

the only question remaining is whether it was signed by the party to be charged or by some 

other person properly authorized by the person sought to be charged. 

Smith Sr.—the party to be charged—signed the counter he made on December 27, 

2020, and there is no designation regarding what capacity, if any, Smith Sr. was executing 

the counter. Surveyor Ricky Hill testified that Smith Sr. went to Satterfield Land Surveyors 

on December 30, 2020, and ordered a survey and plat on “all of his remaining property.”

Best testified that Smith Jr. agreed to pick up the survey, which reflected that the house

property and the bluff property consisted of 2.93 acres total, because Smith Sr. could no 

longer drive. Hill testified that Smith Jr. picked up the survey on February 2, 2021. Best 

testified that the GA was prepared with the legal description from the survey attached, and 

she contacted Smith Jr. and told him they could meet in person to go over the GA with the 

survey or he could e-sign it, whichever he preferred. Best explained that Smith Jr. told her 

he would e-sign it and directed Best to have the GA emailed to his email address: 

dubsmith3@gmail.com. Text messages exchanged between Best and Smith Jr. were entered 

into evidence and corroborate Best’s testimony. 

Smith Jr. testified that he picked up the survey at the surveyor’s office, paid for it, 

and dropped it off at Waco Title, but that he did not look at it. Smith Jr. further testified 

that he does not remember if he signed the GA—he may have, he may not have—but if he 

did, it was while his father was still living. He testified that he was contacted on the 9th, but 

the GA says the 12th. He further testified that he did not sign a GA after his father died, 

which was on February 10, 2021. 

The GA shows execution on February 12, 2021, at 7:00 p.m.:
18

Chuck Fawcett testified that Chuck Fawcett Realty, Inc.—Smith Sr.’s real estate 

company—uses electronic-document-signing software, which was used to execute the GA. 

That software generates a “certificate of authenticity” that provides the date and time a 

document is sent, viewed, and signed as well as the name, email address, and IP address of 

any signatory. 

The certificate of authenticity for the GA, which was admitted into evidence, reflects 

the following in relevant part:
19

The certificate of authenticity shows that an email with an invitation to participate in an 

electronic signing session was sent to dubsmith3@gmail.com on February 9, 2021 at 7:16 

p.m. The certificate of authenticity further shows that the IP address for the electronic 

device used by the signatory during the signing session was 107.77.201.81. 

Fawcett explained that for the software to generate the certificate of authenticity and 

for Smith Jr. to be permitted to sign the GA, Smith Jr. would have necessarily viewed both 

the GA and its attachment—the survey portion containing the legal description that reflected 

approximately 3 total acres of real property. Fawcett further explained that the certificate

reflected that Smith Jr. electronically signed the GA at 7:35:16 p.m. on February 9, 2012. 

Best and Fawcett both testified that the GA’s execution date of February 12, 2021, at 7:00 

p.m. is inaccurate because the form was dated incorrectly prior to it being sent for signing. 

Appellees signed the third page of the GA—the survey portion—but Smith Jr. did 

not. Appellees’ broker, James Vitale, testified that he had appellees sign that page because 

appellees were worried about making sure that everyone knew they had it. He further 

testified that when he received the GA from Black, it had been signed by Fawcett, Best, 

Black, and Smith Jr. Fawcett testified that they did not require a signature on the third page 

of the GA—the survey portion—because they do not normally have clients sign an 

attachment to a GA.

Jill Swad, customer service rep for BHC Insurance, testified that Smith Sr. had a 

homeowner’s policy with them, and Smith Jr. contacted them around February 8 about 

canceling that policy effective February 23 since the house would be sold. She further 

testified that their records reflect that the request from Smith Jr. came from the email address 
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dubsmith3@gmail.com and the IP address 107.77.201.81. Smith Jr. confirmed during his 

testimony that his email address is dubsmith3@gmail.com, and he gets email on his phone. 

He testified that he recalled using DocuSign to sign the cancellation request on the 

homeowner’s insurance. Smith Jr. further confirmed that he had POA over Smith Sr.’s real 

and personal property on February 9, 2021. 

Smith Jr.—a person properly authorized by the person sought to be charged—

electronically signed the GA prior to his father’s death. It is well established in Arkansas that 

one is bound under the law to know of the contents of a paper signed by him, and he cannot 

excuse himself by saying he did not know what it contained. Carmichael v. Nationwide Life

Ins. Co., 305 Ark. 549, 552, 810 S.W.2d 39, 41 (1991). Smith Jr. had authority to sign the 

GA as his father’s representative under the POA. The GA clearly references the attached 

survey; thus, it matters not that Smith Jr. did not sign the attached survey portion itself. The 

GA expressly provides that electronic signatures are permitted and binding upon all parties.

Accordingly, we hold that the circuit court did not err in concluding that the contract 

complies with the statute of frauds. 

As to consideration, appellees agreed to pay $291,000 for the house property and the 

bluff property, and as found by the circuit court, the evidence reflects that consideration

was not lacking. Moreover, appellants’ arguments are unsupported by convincing argument 

or authority, and we will not consider such unless it is apparent without further research

that they are well taken. See, e.g., Tech. Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 234, 

245 S.W.3d 687, 692 (2006). Appellants’ arguments regarding impossibility of performance 

due to some issue with appellees’ financing are also unpersuasive and is a misrepresentation 
21

of the record. The testimony reflected that appellees always had financing available to them 

for the real-estate purchase. Moreover, the existence of a valid and enforceable contract does 

not depend on the terms of the agreements in place between appellees and their financial 

institutions.

Appellants’ arguments regarding standing also fail. The circuit court found that under 

the POA, Smith Jr. could have conveyed the bluff property to the Trust, thus titling all the 

property in the Trust. As the successor trustee, Smith Jr. then could have conveyed the 

entirety of the property to appellees. The circuit court further found that it was apparent 

from Smith Jr.’s testimony that he never intended to complete the transaction on behalf of 

his father, citing Smith Jr.’s testimony that he thought his father had not gotten enough 

money for the property, that he would never have sold the property, not even for half a 

million dollars, and his belief that appellees, their realtor, and the Fawcett parties had 

conspired to cheat Smith Sr. 

It is undisputed that the house property was owned by the Trust and the bluff 

property was owned by Smith Sr. During his testimony, Smith Jr. confirmed that he was 

the successor trustee of the Trust and authorized to act on the Trust’s behalf if his father was 

not “able to continue to serve” as trustee. The POA admitted into evidence named Smith 

Jr. as Smith Sr.’s attorney-in-fact and specifically authorized Smith Jr. to execute contracts 

to sell real property owned by Smith Sr. and to execute deeds conveying Smith Sr.’s real 

property. Smith Jr. confirmed that during his testimony as well. The fact of Smith Sr.’s death 

and the subsequent opening of his Estate did not eviscerate valid contractual obligations 

entered into by Smith Sr. or his agents prior to his death. See, e.g., In re Spann’s Est., 257 
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Ark. 857, 862–63, 520 S.W.2d 286, 290 (1975) (“Contractual obligations which survive 

the death of the obligor are binding on his executor in his representative capacity and 

enforceable against the estate, and it is the duty of the executor to carry out such contracts 

and compliance may be enforced unless the obligations are personal in nature and personal 

performance by the decedent is of the essence of the contract.”). The deal could have closed.

Thus, we hold that the circuit court did not err in denying each of appellants’ directedverdict motions or in ordering specific performance of the contract. Accordingly, we affirm 

the circuit court’s February 18, 2022 oral rulings, the March 18, 2022 order and judgment, 

and the April 19, 2022 amended order and judgment.

B. Attorney’s Fees

Appellants next contend that the circuit court erred in awarding fees and costs to 

appellees because they are unavailable in an equitable claim, they were excessive, and there 

was an insufficient basis to impose them. The standard of review for an appeal of a fee award 

is whether there was an abuse of discretion. James v. Walchli, 2015 Ark. App. 562, at 7, 472 

S.W.3d 504, 508. There is no fixed formula for determining what constitutes a reasonable 

amount of attorney fees. Id. at 7, 472 S.W.3d at 508. Because the circuit court has presided 

over the case and gained familiarity with the case and the extent and quality of the services 

rendered by the attorney, it has a superior opportunity to assess the critical factors that apply. 

Id.

First, attorney’s fees are permissible in a specific-performance case. See Ark. Code 

Ann. § 16-22-308 (Repl. 1999); Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995).

Second, appellees were the prevailing parties. Third, appellees presented a well-supported 
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fee motion in a contentious case, and the circuit court granted an amount equal to 66

percent of what was requested. Appellants have failed to demonstrate that there was a clear 

abuse of discretion in the attorney-fee award. Accordingly, we affirm the May 16, 2022 

order awarding attorney’s fees and costs.

C. Contempt

Appellants contend that the contempt finding must be reversed because the order 

and judgment were vague, and there was no showing of an ability to close or post a bond 

at the time of the order. They further contend that any accrued daily penalties should be 

remitted because appellees posted a supersedeas bond. A contempt proceeding is a cause of 

action to enforce valid orders of a court. Mountain Pure, LLC v. Clear Water Holdings, LLC, 

2016 Ark. App. 542, at 7, 506 S.W.3d 281, 286. Contempt is a matter between the judge 

and the litigant and not between the two opposing litigants. Id. To establish contempt, there 

must be willful disobedience of a valid order of a court. Id. For a person to be held in 

contempt for violating a court order, that order must be clear and definite as to the duties 

imposed upon the party, and the directions must be expressed rather than implied. Id.

The order and judgment clearly directed the parties to close the real-estate deal—the 

sale of a house and approximately three acres in exchange for $291,000. At the time of the 

order, the Estate existed complete with an executor, and Smith Jr. was the successor trustee

for the Trust. Appellants intentionally and willfully defied a clear and unequivocal court 

order. Accordingly, we affirm the May 27, 2022 order of contempt.

As to the daily penalties, that order was also clear—the penalties would cease accruing 

upon the satisfaction of one of two things: either the closing of the real estate deal or the 
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posting of the supersedeas bond. Appellants chose the latter. Under the clear language of 

the contempt order, the daily penalties ceased accruing at that point. As to any argument 

that the entirety of the fees accrued up until the posting of the bond should be forgiven, it

is unavailing. As the circuit court appropriately and understandably stated, “zero” was not 

going to do it, given appellants’ contemptuous conduct. Accordingly, we hold that the daily 

penalties that accrued up to and including the date that appellants posted their bond were 

valid.

IV. Cross-Appeal

On cross-appeal, appellees contend that the circuit court erred by not awarding them 

an equitable credit of $24,000 for the deprivation of the use of the property. Appellees 

planned to have a double closing on February 22, 2021, selling their home and buying the 

property at issue. Appellees closed on the sale of their home, but because they were unable 

to close on the at-issue property, they moved into a rent house and stored some personal 

belongings. The Smith house was damaged by a tornado in May 2021, and testimony was 

given that it would cost $17,829.61 and $5100 to repair those damages—costs that would 

have been covered by the homeowner’s insurance had it not been canceled by Smith Jr., 

effective February 23, 2021. 

The circuit court ordered the contract performed—the house property and the bluff 

property in exchange for $291,000—less equitable credits in favor of appellees for 

$22,929.61 in repairs to the house; $1416 in storage fees; $12,000 in rent; and $2400 in 

moving expenses. The circuit court declined to also award appellees an equitable credit for 
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the rental value of the Smith house as representative of appellees’ deprivation of the house 

during the litigation. 

The circuit court’s decisions regarding equitable credits were conclusions of law. 

Accordingly, the standard of review is de novo. Barnes v. Wagoner, 2019 Ark. App. 174, at 

3, 573 S.W.3d 594, 596. Specific performance is an equitable remedy that compels the 

performance of a contract on the precise terms agreed on or such a substantial performance 

as will do justice between the parties under the circumstances. McCoy Farms, Inc. v. J&M

McKee, 263 Ark. 20, 32–33, 563 S.W.2d 409, 415–16 (1978). The object in such cases is to 

place the party without fault in nearly the same position as he would have been had there 

been no default by the other party. Id. The guiding principle in such cases is to relate the 

contract back to the date set therein. Id. Although, strictly speaking, legal damages are not 

awarded when specific performance is decreed, a decree should, as nearly as possible, give 

the complainant credit for any losses occasioned by the delay. Id.

There is no indication in the record that appellees were ever going to do anything 

but reside in the Smith house themselves. Because they were unable to due to appellants’

breach of contract, appellees were forced to rent a place to live and store personal 

belongings. The circuit court awarded appellees equitable credits representative of those 

costs. The circuit court further ordered that appellees be credited for costs that will be 

necessary to make repairs to the house. On this record, we cannot say that the circuit court

erred in denying appellee’s request.

Affirmed on direct appeal; affirmed on cross-appeal. 

ABRAMSON and WOOD, JJ., agree.
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Phillip J. Milligan and Robert S. Tschiemer, for appellants/cross-appellees.

Jones, Jackson, Moll, McGinnis & Stocks, PLC, by: Mark Moll, for appellees/crossappellants.