Cite as 2015 Ark. App. 466
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-359
YOSEF KAPACH Opinion Delivered SEPTEMBER 9, 2015
APPELLANT
APPEAL FROM THE MARION
V. COUNTY CIRCUIT COURT
[NO. CV 2010-92-3]
BETTINE FIELD CARROLL HONORABLE JOHN R. PUTMAN,
APPELLEE JUDGE
AFFIRMED; MOTION FOR COSTS
AND ATTORNEY’S FEES DENIED
CLIFF HOOFMAN, Judge
This appeal arises out of a failed real-estate transaction.1 Yosef Kapach supplied
$500,000 that was used as earnest money to secure a contract for the purchase of land in
Boone County, Arkansas. The transaction was never completed, and the seller of the land,
Bettine Field Carroll, retained the $500,000. Mr. Kapach sued Ms. Carroll for unjust
enrichment, and following a bench trial, the trial court dismissed Mr. Kapach’s complaint with
prejudice. He appeals. Mr. Kapach asserts two points on appeal: (1) he argues that the trial
court erred in refusing to admit his proferred exhibit C-1 and (2) he contends that the trial
court erred in dismissing his complaint for unjust enrichment.2 We affirm.
1
This court previously ordered rebriefing in this case because of abstracting
deficiencies. Kapach v. Carroll, 2015 Ark. App. 154.
2
Also before our court is the appellee’s motion for costs and attorney’s fees. This
motion is denied.
Cite as 2015 Ark. App. 466
In May 2006, Bettine Field Carroll entered into a contract to sell 1,100 acres of land
in Boone County, Arkansas, to Leo National, Inc. (Leo National) for $3.1 million.3 Leo
National encountered difficulty in timely completing the sale, and the parties negotiated a
series of extensions to the contract. Two of the extensions are pertinent for our review.
The first notable extension occurred on December 5, 2006. On that date, Leo
National transferred $200,000 to Marion County Abstract Company in order to secure an
extension on the closing date of the contract. Mr. Kapach supplied the $200,000 used to
obtain the extension. The contract for extension provided that this money would be
forfeited in the event that the sale was not completed.
The second pertinent extension occurred on February 23, 2007. On this date, Leo
National transferred $300,000 to Marion County Abstract to again extend the contract’s
closing date an additional time. Mr. Kapach supplied the $300,000 for this extension. Once
again, the contract for extension provided that this money would be forfeited in the event
the sale was not completed.
The terms of the real-estate contract authorized Leo National to assign its rights under
the contract. Leo National did, in fact, assign its rights under the contract to Lions Gate,
LLC (Lions Gate) on February 26, 2007.
The real estate contract between Ms. Carroll and Leo National/Lions Gate was never
effectuated, and the contract was cancelled. Pursuant to the terms of the agreements, Ms.
3
Clarice Siegman acted as the agent for the Leo National, and Marion County
Abstract Company, Inc. served as the escrow agent.
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Carroll retained all earnest money, including the $500,000 paid by Mr. Kapach.
During the pendency of these negotiations, Charles Stricklan, the project manager for
Lions Gate, apparently formed another corporation—Lions Gate Partners, LLC (Lions Gate
Partners). Mr. Stricklan was negotiating with Ms. Carroll on behalf of Lions Gate Partners
while he was simultaneously serving as project manager for Lions Gate. Ms. Carroll entered
into a back-up contract with Lions Gate Partners for the purchase of the land in the event
that the contract with Lions Gate did not close. Three days after the contract with Lions
Gate expired, Ms. Carroll and Lions Gate Partners closed on a contract for sale of the same
1,100 acres for $3.1 million. Feeling wronged by this, Mr. Kapach requested that Ms. Carroll
return the $500,000 he paid to secure the extensions on the contract between her and Leo
National/Lions Gate. Ms. Carroll refused.
Mr. Kapach sued Ms. Carroll for unjust enrichment based upon her retention of the
$500,000 in earnest money. After a bench trial, the court denied Mr. Kapach’s claim. This
appeal followed.
Mr. Kapach first argues that the trial court erred in refusing to admit his proferred
exhibit C-1. Exhibit C-1 is an email from Charles Stricklan in his capacity as the managing
member and president of Lions Gate Partners to Clarice Siegman, the agent for Leo
National/Lions Gate. In the email, Mr. Stricklan requested a few days to secure other
investors to purchase the property. Mr. Kapach contends that without the introduction of
exhibit C-1, the trial court could not understand his theory of the case.
This court will not overturn a trial court’s evidentiary ruling absent clear error or a
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manifest abuse of discretion. Stewart v. State, 2012 Ark. 349, 423 S.W.3d 69. Abuse of
discretion is “a high threshold that does not simply require error in the trial court’s decision,
but requires that the trial court acted improvidently, thoughtlessly, or without due
consideration.” St. Joseph’s Mercy Health Ctr. v. Edwards, 2011 Ark. App. 560, 385 S.W.3d
849. Additionally, a trial court’s ruling will not be reversed on the admission or rejection of
evidence absent a showing of prejudice. Id.
The trial court refused to admit exhibit C-1 after Ms. Carroll’s counsel objected on
the grounds of hearsay. On appeal, Mr. Kapach contends that the email did not meet the
definition of hearsay because it is an admission by a party-opponent offered against a party
and is a statement of which he has manifested his adoption or belief in its truth. Ark. R.
Evid. 801(d)(2)(ii). However, when counsel for Ms. Carroll objected to the introduction
of Exhibit C-1 on the basis of hearsay, counsel for Mr. Kapach conceded that the email was
“technically hearsay.” Additionally, counsel never argued to the trial court that the email was
admissible pursuant to Ark. R. Evid. 801(d)(2)(ii).
This court will not consider arguments made for the first time on appeal. Brown v.
Lee, 2012 Ark. 417, 424 S.W.3d 817. Moreover, a party is bound by the scope and nature
of the arguments made at trial. Id. Because Mr. Kapach did not argue below that the hearsay
exception applied to exhibit C-1, we summarily reject this argument.
We now turn our attention to whether the trial court erred in dismissing Mr.
Kapach’s claim for unjust enrichment. Unjust enrichment is based on the principle that one
person should not be permitted unjustly to enrich himself at the expense of another, but
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should be required to make restitution of or for property or benefits received, retained, or
appropriated, whether requested or not, when it is just and equitable that restitution should
be made. Adkinson v. Kilgore, 62 Ark. App. 247, 970 S.W.2d 327 (1998). It is not necessary,
in order to create an obligation to make restitution, that the party unjustly enriched should
have been guilty of a wrongful act. Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30
(1979). The question is simply whether he obtained something of value, under such
circumstances that, in equity and good conscience, he ought not to retain. Id. Because a
bench trial was held, we are tasked with reviewing whether the judge’s findings were clearly
erroneous or clearly against the preponderance of the evidence. Omni Holding & Dev. Corp.
v. C.A.G. Invs., Inc., 370 Ark. 220, 258 S.W.3d 374 (2007).
The theory of Mr. Kapach’s case is that Ms. Carroll participated in a plot or scheme
to defraud him of his $500,000. In its judgment, the trial court notes that it found no
credible evidence that Ms. Carroll was involved in a plot with Mr. Stricklan to benefit herself
and Mr. Stricklan to the detriment of Mr. Kapach. Even so, the court correctly noted that
the doctrine of unjust enrichment does not require that one unjustly enriched be guilty of
a wrongful action and that the operative question for its review was whether Ms. Carroll
obtained something of value under circumstances that, in equity and good conscience, she
ought not to retain. Frigillana, supra.
The trial court determined that Ms. Carroll was entitled to retain Mr. Kapach’s
$500,000 because these funds were given to her in exchange for valuable consideration. That
consideration was evidenced in the terms of the contracts, which extended the time the
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buyer had to satisfy the terms of the agreement in exchange for additional earnest money.
This process was lengthy and ultimately in vain. While the trial court heard extensive
testimony regarding the alleged plot to defraud Mr. Kapach, it also heard from Ms. Carroll
who testified that she continued to grant extensions to the original contract because she
wanted desperately to sell the land because owning it was burdensome. The trial court heard
and evaluated this evidence and was not convinced that Ms. Carroll, in equity and good
conscience, ought to return the $500,000. We cannot say that the trial court’s decision was
clearly erroneous.
Affirmed; motion for costs and attorney’s fees denied.
ABRAMSON and GRUBER , JJ., agree.
Davis Law Firm, by: Steven B. Davis; and Cherryhomes Law Firm, by: Michael Tom
Cherryhomes, for appellant.
Everett, Wales & Comstock, by: Jason H. Wales, for appellee.
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