Cite as 2016 Ark. App. 193 

## ARKANSAS COURT OF APPEALS DIVISION IV No. CV

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- 341 BRUCE SMITH AND JAN SMITH, HUSBAND AND WIFE APPELLANT S /CROSS

- APPELLEES
V.
MOUNTAIN P INE TIMBER, INC.; JOE T. BENTON III; RUSSELL A. BENTON; AND SHEILA SNOWDEN, IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DANNY H. SNOWDEN, DECEASED APPELLEE S /CROSS

- APPELLANTS Opinion Delivered: APRIL 6, 2016
APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. CV- 2010

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HONORABLE TIM WEAVER , JUDGE
AFFIRMED

R ITA W. G RUBER , Judge This appeal arises out of a mineral-rights dispute

. Mountain Pine Timber , Inc. (MPT) , sold land located in Cleburne County, Arkansas, to Bruce Smith and Jan Smith (the Smiths) and claimed to convey all rights to the land to them. However, MPT had previously conveyed the mineral rights to the land to another entity. The Smiths learned of the previous conveyance when they attempted to se ll the mineral rights. Following this discovery, the Smiths sued MPT and its former shareholders for bre ach of warranty of title

. The result was a $250.22 jury verdict in the Smiths’ favor. This appeal followed.
I. Facts
I n 1987 , th e Smiths purchased two tracts of land from MPT. MPT was an Arkansas corporation owned by Joe Benton, Russell Benton (the Bentons), and Danny Snowden. On February 12, 1987, the Smiths agreed to purchase 130.22 acres of land from MPT.Cite as 2016 Ark. App. 193

2 They paid for the land over time and eventually obtained a warranty deed to the land on April 22, 1993. On March 27, 1987, the Smiths purchased an additional 120 acres from MPT; they paid for the land immediately and were given a warranty deed to the land on that date. Neither deed contained a reservation or exception of minerals. Prior to the execution of these warranty deeds, MPT conveyed the minerals underlying both tracts of land to CenArk Oil and Gas Company (CenArk). CenArk was also owned by the Bentons and Danny Snowden. In 2008, th e Smiths contracted to sell the mineral rights to both tracts of land for $1,500 per acre. It was at this time that the Smiths discovered the prior mineral deed from MPT to CenArk. Because of the prior deed, the Smiths were unable to effectuate the ir sal e of the mineral rights. In October 2010, the Smiths initiated this litigation against MPT suing it for breach

o f warranty of title. MPT responded by filing a motion to dismiss pursuant to Ark. R. Civ.
P . 12(b)(6) arguing that the statute of limitations had expired on the Smith s’ claim. The circuit court denied MPT’s motion to dismiss finding that the breach occurred at the time of con structive eviction and concluding that the statute of limitations did not bar this action

. During the pendency of the li tigation, the Smiths learned that MPT was a dissolved corporation. Upon this discovery , they amended their complaint to add the Bentons and the Estate of Danny Snowden, the form er shareholders of MPT, as parties. 1 As the litigation progressed, the Smiths filed a motion to determine the measure of da mages applicable to their claim for breach of warranty of title. The Smiths argued that

1 The Bentons filed a motion to dismiss on the same statute

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- limitations grounds raised previously by MPT, and the circuit court again rejected this argument.Cite as 2016 Ark. App. 193

3 their damages should be based on the value of the minerals at the time of constructive eviction, while the Bentons and t he Estate of Danny Snowden argued that damages should be based on the value of the minerals at the time of conveyance but limited to the purchase price. The circuit court ultimately found in favor of the Bentons and Danny Snowden’s

estate on this issue. The case proceeded to a jury trial on November 6, 2014. At trial, the circuit court precluded the Smiths from presenting evidence of the value of the mineral rights at the time of constructive eviction and limited the proof to the value of the minerals a t the time of conveyance. The jury returned verdicts in favor of the Smiths against all defendants, but awarded only $1 per acre in damages for a total of $250.22. A judgment r eflecting the verdicts was entered o n January 8, 2015. The Smiths filed a timely noti ce of appeal. The Bentons and the Estate of Snowden each fi led a timely notice of cross -appeal.
II. The Direct Appeal The Smiths raise three points in this appeal: (1) that the circuit court erred in adopting a measure of damages for their br each

- of -warranty- of

- title claim that limited damages to the value of the mineral rights at the time of conveyance, (2) that the circuit court erred in rejecting their proffered jury instructions on damages, and (3) that the circuit court erred in excluding evidence proffered by them regarding the value of the property at the time of constructive evict ion. Our primary consideration is whether the circuit court utilized the proper measure of damages for the Smiths’ br each

- of -warranty- of

- title claim. The ans wer to this question is determinat ive of all of the issues in the Smiths’ appeal.Cite as 2016 Ark. App. 193

4 A. The Proper Measure of Damages Belleville Land & Lumber Co. v. Griffith , 177 Ark. 170, 6 S.W.2d 36 (1928), outlines the general standard for the measure of damages in these types of cases. The Belleville case stands for the proposition that “the measure of damages would be the value of the mineral rights or whatever the vendor did not have the right to convey.” Id . As we endeavor to analyze when the mineral rights are to be valued for the purpose of assessing damages, we note that if there is a total failure of title, the damages are equal to the purchase money, with
intere st. Carvill v. Jacks , 43 Ark

. 439 (1884). “Nothing can be allowed for improvements and the increased value of the land.” Id

. If a total failure of title ca n only result in damages equal to the amount used to purchase the land, it stands to reason that a partial breach could not result in damages greater than the purchase price. Arkansas case law supports this theory. Where title to only a portion of the land conveyed fails, the measure of damages “is so much of the consideration paid as is proportioned to the value of the land lost, with interest.”
Lane v. Stitt , 143 Ark. 27, 219 S.W. 340 (1920) (citing Alexander v. Bridgford , 59 Ark. 195,
27 S.W. 69 (1894)). Therefore, d amages for brea ch of warranty of tit le are to be calculated based on the value of the mineral rights at the time of the conveyance. The Smiths make an alternate argument in favor of measuring damages from the time of constructive eviction. They assert that in cases w here a grantor knows that he or sh e does not own the land the grantor is selling, the grantee is entitled to the value of the land at the time of eviction. In support of this proposit ion, they cite Clark v. Ziegler , 79 Ala. 346 (1885) and Sietsema v. And erson , 188 Iowa 651, 176 N .W. 611 (1920). At best, these decisions from other jurisdictions are only persuasive authority, and we decline to adopt anCite as 2016 Ark. App. 193

5 exception to the general rule li miting damages for breach of warranty of title to the value of the property at the time of conveyance. Accordingly, we hold that the circuit court did not err in adopting a measure of damages for the Smiths’ breach

- of -warranty- of

- title claim that limited their damages to the value of the mineral rights at the time of conveyance . With this standard in mind, we easily dispose of the Smiths ’ remaining points on appeal.
B. The Pro f fered Jury Instructions The Smiths argue that the circuit court erred in its refusal to give two jury instructions on the measure of damages. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Williams v. First Unum Life Ins. Co. , 358 Ark. 224, 188 S.W.3d 908 (2004). This court shou ld reverse a circuit court’s refusal to give a proferred jury instruction if there was an abuse of discretion. S. Farm Bureau Cas. Ins. Co. v. Daggett , 354 Ark. 112, 118 S.W.3d 525 (2003). First, the Smiths challenge the circuit court’s refusal to give an instruction providing that they were entitled to damages equal to the fair market value of the minerals at the time of constructive eviction . This instruction was refused , and the circuit court selected a damages instruction limiting the Smiths’ recovery to the value of the minerals at the time of the conveyance. Following that decision, the Smiths requested that an additional
instruction be read in conjunction with this damages instruction . That proferred jury instruction provided that the Smiths wer e allowed to recover damages based on the value of the mineral rig hts at the time of constructive eviction because the sellers knew that theyCite as 2016 Ark. App. 193

6 did not own the minerals at the time of the c onveyance. This instruction was also refused by the circuit court. As discus sed previously, neither of these proffered instructions is a correct statement of our law on the measure of d amages for breach of warranty of title. Accordingly, we hold the circuit court did not abuse its discretion in refusing to give these
instructions.
C. The Proffe red Evidence The circuit court also excluded evidence prof fe red by the Smiths regarding the value of the minerals at the time of constructive eviction

. This court will not reverse a circuit

court ’s ruling on the admissibility of evidence absent an abuse of discretion. Willis v. Crumbly , 371 Ark. 517, 268 S.W.3d 288 (2007). Again, our analysis hinges on whether the circuit court adopted the proper measure of damages in this case. Because the circ uit court adopted the proper measure of damages, it was not error to refuse to admit the pro ffered evidence regarding the value of the minerals at the time of constructive eviction.
III. The Cross

- Appeals The Bentons and the Estate of Snowden both cross

- appeal. The Bentons contend that the circuit court erred by denying their motions for directed verdict because (1) there was no proof that MPT’s assets were distributed to its individual shareholders during
corpor ate liquidation, and (2) the Smiths failed to pr esent any evidence of damages regarding the value of the mineral rights at the time of conveyance. The Estate of Snowden argues that the circuit court erred in ruling that this action was not barred by the statute of limitations.Cite as 2016 Ark. App. 193

7 A. The Bentons’ Cros s- Appeal Both of the Benton s’ points on cross

- appeal pertain to whether the circuit court properly denied their motions for directed verdict. The standard of review for the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. ConAgra Foods, Inc. v. Draper , 372 Ark. 361, 276 S.W.3d 244 (2008). Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Ste wart Title Guar. Co. v. Am. Abstract & Title Co. , 363 Ark. 530, 215 S.W.3d 596 (2005). In determining whether there is substantial evidence, this court “views the e vidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered.” ConAgra Foods, Inc. , supra. As a preliminary matter, the Smiths contend that the Bentons failed to preserve either of their points on cross -appea l. It is undisputed that at the close of the evidence in the Smiths’ case -in- chief, the Bentons made motions for directed verdict based on both points challenged on appeal. Those motions were denied. At the close of all of the evidence in the case, the Bentons simply renewed “all motions that we made at the close of [the Smiths’]

case. ” The Smiths contend that the Bentons’ failure to reiterate the grounds on which their motions for directed verdict were made precludes this cour t from reaching the merits of this issue. We disagree. O ur supreme court has held that the renewal of motions for directed verdict was entirely sufficient to preserve the issue on appeal. Aronson v. Harriman , 321 Ar k. 359, 901 S.W.2d 832 (1995).Cite as 2016 Ark. App. 193

8 We first consider whether the circuit court erred by allowing the jury to conside r whether the former shareholders of MPT could be liable to the Smiths for damages

. Ar kansas Code Annotated section 4

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- 1407(d)(2) (Supp. 2015) pertains to enforcement of unknown c laims against shareholders and is the statute by which the Smiths successfully sought to have personal liability imposed on the former sharehold ers of MPT. It applies only when “the assets [of the corporation] have been distributed in liquidation.” Ark. Code Ann. § 4

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- 1407 (d)(2). When liquidation occurs, enforcement of claims against an individual shareholder is permitted “to the extent of . . . the corporate assets distributed to him in liquidation.” Id

. The Bentons argue that judgment against them as individuals cannot stand because there was not substantial evidence that the assets of MPT were distribut ed in liquidation. The outcome of this issue depends on the meaning of the settlement agreement entered into by the former shar ehold ers of MPT, which divided all of MPT’s property and debt between the individual shareholders. Additionally, Russell Benton testified that the settlement agreement was a division of MPT’s assets and resulted in a transfer of those assets to MPT’s shareholders. He stated that MPT had as sets of over $2 million, that Danny Snowden was a 50 percent shareholder , and that Russell and his brother Joe were 25 percent shareholders. While not specifically termed liquidation in the settlement agre ement, we conclude that there wa s substantial evidence that the settlement agreement liquidated MPT’s assets and distributed them to its individual s hareholders and/or their assignees.Cite as 2016 Ark. App. 193

9 Now, we turn our attention to the second argument presented by the Ben tons. They als o contend that the Smiths failed to present substantial evidence of their damages and that the circuit court improperly denied their motions for directed verdict on this issue.
T he Smiths were required to present some evidence of the value o f the mineral rights at the time of conveyance. Lane , supra
. The evidence reflects that the mineral rights were worth $1 per acre at the time of the conveyance. According to the testimony of Russell Benton, MPT sold CenArk the mineral righ ts for $1 per acre in 1985. In reviewing the evidence in the light most favorable to the Smiths, we conclude that the circuit court did not err in denying the Bentons’ motion for directed verdict on the issue of damages. Accordingly, we affirm on the Bentons’ cross -appeal.
B. The Estate of Snowden’s Cross

- Appeal The Estate of Snowden argues that the circuit court erred in ruling that the statute of limitations did not bar the Smiths’ claim. We summarily dispose of this argument. T he Estate of Snowden failed to raise the statute

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- limitations issue before the circuit court. While both MPT and the Bentons filed motions to dismiss on the grounds that the statute of limitations barred this action, the Estate of Snowden did not seek a ruling from the circuit court regard ing whether the statute of limitations barred the Smiths’ claim. Because the Snowden Estate did not obtain a ruling on this issue, this court is precluded from considering it on appeal. Garcia v. Estate of Duvall , 375 Ark. 520, 293 S.W.3d 389 (2009). Ad ditionally , the Estate of Snowden’s cross -appeal can be disposed of for an alternative reason. The Estate argues to this court that the statute of limitations began to run at the time of conveyance because the land was “wild and unimproved.” Seldon v. Du dley E. Jones Co. , 74 Ark. 348,Cite as 2016 Ark. App. 193

10 85 S.W. 778 (1905) (holding that “where the land is wild and unimproved, a ctual eviction is not necessary ”). However, w hether the land was wild and unimproved was not addressed by the circuit court. We a re precluded from c onsidering this argument on appeal. Garcia , supra
. Affirmed.
A BRAMSON and V AUGHT , JJ., agree. Bowen Law Firm, PLLC , by: Martin W. Bowen ; and Gregory D. Taylor, P.A. , by: Gregory D. Taylor , for appellants. Morgan Law Firm, P.A. , by: M. Edward Morgan , for appellee Sheila Snowden, in her capacity as personal representative of the Estate of Danny H. Snowden, Deceased.