dissenting. I disagree with the majority’s conclusion that the trial judge did not abdicate his role as fact-finder in this case. Therefore, I respectfully dissent.
In our first opinion, we stated that at the conclusion of Williams’s case-in-chief, the trial judge granted the directed verdict in favor of the defendant, Ward, because Williams failed to establish that an enforceable contract was created by the parties and because there was not sufficient performance of any contract to remove it from the operation of the statute of frauds. We held that the trial judge erred in granting a directed verdict in favor of Ward.
However, our opinion, in obiter dictum, went beyond the narrow holding that, after weighing the evidence in the light most favorable to the party opposing the directed verdict, Ward was not entitled to a directed verdict. We stated, “The evidence demonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached.” Further, we stated, “Appellant’s actions were more than sufficient to remove the contract from the statute of frauds.” In making these statements, we appeared not only to say that Ward was not entitled to a directed verdict, but also that a contract was formed and sufficiently performed to remove it from the statute of frauds.
On remand, the trial judge heard additional evidence. However, in his letter opinion, after noting that he had reviewed “the proof from the hearing[s],” the briefs of the parties, and the “Opinion of the Arkansas Court of Appeals,” he stated as follows:
The Court of Appeals found that the plaintiffs proof “demonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contact and that appellant established, by clear and convincing evidence, that an agreement was reached.”
The question then is whether defendants rebutted that proof sufficiently to conclude otherwise. The answer is no. Contrary to the defendants’ argument that the terms of the contract are not definite, the Opinion is very clear: “Appellant established the property’s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract.” In fact, all of the defendants’ contentions are contrary to the Court of Appeals’ findings.
Clearly, in light of the proof and the Opinion, the plaintiff should be given full credit for the $550,000.00 sale of the tract to Buford Blackwell. The contract price is paid in full, and the plaintiff is entided to conveyance of the property by warranty deed.
On appeal, Ward argues that the trial judge abdicated his role as fact-finder in this case and failed to weigh the evidence adduced by the parties or judge the credibility of the witnesses. As Ward states in his brief: “It is one thing for the Chancellor to find upon correct application of the law and after hearing all of the evidence that there is an oral contract between two parties, but it is quite another to find an oral contract exists simply because this Court has found prima facie evidence of an oral contract based solely upon the evidence presented by one party. ”^
I believe Ward is correct. In our earlier opinion, the only issue before us was whether the trial judge erred in granting a directed verdict in favor of Ward; we could not have “found” that a contract was formed or that there was sufficient performance of the contract to remove it from the statute of frauds. See generally Woodall v. Chuck Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001). The Arkansas Supreme Court has stated that “[w]here discussion or comment in an opinion is not necessary to the decision reached therein, the discussion or comment is an obiter dictum.” Green v. State, 343 Ark. 244, 250, 33 S.W.3d 485, 490 (2000). Furthermore, “the court is not bound by a conclusion stated as obiter dictum, even if couched in terms that infer the court reached a conclusion on a ¿natter.” Green, 343 Ark. at 250, 33 S.W.3d at 489. To the extent that we went beyond holding that Ward was not entitled to a directed verdict, our discussion was an obiter dictum. On remand, the trial judge should not have construed our opinion as making findings of fact.
The majority states, “In looking at the trial court’s statements in their entirety, it is clear that the trial court considered all the evidence . . . before deciding in favor of appellee.” The majority, however, does not explain how, upon examining the trial judge’s statements in their entirety, it could plausibly arrive at this conclusion. Without actually saying so, the majority appears to assume that the trial judge’s phrase, “in light of the proof,” found in his letter opinion, suggests that the trial court considered all of the evidence. This phrase, however, is too thin a basket to carry the weight of their conclusion.
In fact, in his opinion, the trial judge makes no mention at all of any of the evidence adduced at trial. Rather, the judge extensively quotes from our opinion and explains, at length, how he is bound by this court’s earlier “findings.” For instance, the judge states that the “Court of Appeals found that the plaintiffs proof ‘demonstrates that ... an agreement was reached,’” that the defendants did not sufficiently rebut that proof, that “the Opinion is very clear” that the terms of the contract are definite, and that “defendants’ contentions are contrary to the Court of Appeals’ findings.” Even the phrase apparently relied upon by the majority is coupled with the phrase, “in light of. . . the Opinion.”
I conclude that the trial judge improperly and quite specifically relied on obiter dictum in our opinion to arrive at his conclusions, and in doing so, he abdicated his role as fact-finder in this case. I respectfully dissent.
Roaf, J., joins.