dissenting. I must dissent because I believe that the trial court in this case impermissibly deferred to the Court of Appeals’ erroneous language, thereby abdicating its role as factfinder. In order to fully understand how the error in this case occurred, it is necessary to go back to the language in the Court of Appeals’ unpublished opinion in Ward I, in which the Court of Appeals incorrectly made specific findings:
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. 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 our view, appellant’s actions in securing tenants, making repairs and improvements to the property, and securing insurance on it, along with the substantial amount of money he paid appellee, overwhelmingly demonstrate that both parties viewed this transaction as a sale. One cannot reasonably conclude that appellant’s actions were those of a tenant.
Ward I, slip op. at 4-5 (emphasis added).
While it is true that a plaintiff must establish an oral contract by clear and convincing evidence, that standard of proof is utilized by the trial court when deciding a case on its merits after hearing evidence from both sides. See Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997). In Ward I, the appeal was from a Rule 50(a) dismissal after hearing only the plaintiffs evidence. In Swink v. Giffin, 333 Ark. 400, 970 S.W.2d 207 (1998), we reiterated the trial court’s duty under such circumstances:
... In a long line of cases, beginning with Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), we have held that a chancellor’s duty in the circumstances presented here is to review the defense motion for dismissal at the conclusion of the plaintiffs’ case by deciding whether, if it were a jury trial, the evidence would be sufficient to present to the jury.... Rule 50(a) and [its precursor statute] permit the granting of a dismissal only when the plaintiffs evidence is insufficient to go forward, i.e., to constitute a prima fade case for relief.
Id. at 403. We then went on to quote from Neely v. Jones, 234 Ark. 812, 813, 354 S.W.2d 726, 727 (1962) (Neely II):
. . . [W]e have consistently held that a [grant of a motion to dismiss under Rule 50(a)] should be sustained only if that proof, viewed in its most favorable light, would present no question of fact for a jury if the case were being tried at law. In such a situation the chancellor does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence, [citation omitted].
Swink v. Giffin, 333 Ark. at 403-04 (emphasis in original).
The majority correctly states that appellate courts do not make findings of fact but rather review findings of fact of the circuit court to determine whether they are clearly erroneous. See Ark. R. Civ. P. 52(a) (2003). Thus, the majority holds that the statements by the Court of Appeals were obiter dictum and were not binding on the circuit court. However, the Court of Appeals overstepped its bounds by finding that there was an enforceable contract between the parties.
The Court of Appeals should have held that a prima facie case had been made — a decision that would have bound the trial court to nothing other than allowing the trial to go forward. Instead, the Court of Appeals held that the plaintiff-appellant had established by clear and convincing evidence not only the agreement, but the terms of the agreement — purchase price, amount of down payment and manner in which it would be satisfied, amount of monthly payments, and the term of the contract. In fact, the Court of Appeals held that the appellant’s evidence overwhelmingly demonstrated that both parties viewed the transaction as a sale, even though it did so without benefit of the other party’s evidence. So, instead of stating that a prima facie case was made, the Court of Appeals found that an oral contract existed.
The majority holds that Ward I did not bind the trial court on remand, and that the trial court did not impermissibly abdicate its responsibility to weigh the plaintiffs evidence against the defendant’s evidence in making its decision. The key to the trial court’s decision is found in both the colloquy that is quoted by the majority and the trial court’s letter opinion dated May 23, 2001. Referring to the colloquy, the trial court on remand apparently believed the Court of Appeals’ finding of an enforceable contract was binding, and the trial court, far from weighing the plaintiffs evidence against the defendant’s evidence, believed the plaintiffs evidence had already established that a contract existed unless the defendant could refute the existence of the contract:
The Court: The truth is the Court ofAppeals said there was enough there for a contract regardless of what problems we may have with it, they have said, “There is a contract. It’s enforceable.” At least that’s the way I.read it.
Defense Counsel: There’s a prima facie case.
The Court: Which in my mind means it’s not the burden of proof, it’s the burden of persuasion shifts to you and I’m asking you what it is that I can rely on to tell me why there is not [a contract].
At the end of the colloquy, the trial court stated, “I’m going to go back and read the original hearing and I’ll disregard any argument that is not supported by the evidence.” This, combined with the fact that the Judgment did not mention Ward I, convinces the majority that the trial court went back over all the evidence and, disregarding the Court of Appeals’ opinion, gave the plaintiffs evidence only the weight he should have properly given it. I am not persuaded.
The trial court here made the same mistake that was made by the appellants in the similar case of Neely v. Jones, 234 Ark. 812, 354 S.W.2d 726 (1962) (Neely II), which was cited in Swink, supra. In Neely v. Jones, 232 Ark. 411, 337 S.W.2d 872 (1960) (Neely I), the trial court had sustained a demurrer to the plaintiffs’ evidence (the pre-Rules equivalent of a Rule 50(a) dismissal). The plaintiffs appealed and we reversed and remanded, holding that the plaintiffs had raised a question of fact as to the issue in question. Id. On remand, the trial court heard the defendants’ evidence, and then found for the defendants. The plaintiffs again appealed, this time asserting that our holding in Neely I was “law of the case” establishing as a fact the issue in question. Id. We affirmed the trial court, explaining that the same evidence that can establish a prima facie case may not be enough to establish a claim on its merits:
... [OJur decision on the first appeal meant only that if the case had been heard at law upon the plaintiffs’ evidence it would have been error to direct a verdict for the defendants.
Upon remand the defendants eventually rested their case, and the cause was submitted upon the merits. Then, for the first time, it was proper for the chancellor to weigh the evidence and determine where its preponderance by. He was not obliged to find for the plaintiffs, any more than a jury would have been if the case had been retried at law after having been reversed for the trial court’s error in directing a verdict for the defendants. Thus our decision upon the first appeal did not preclude the chancellor from finding, even upon the original proof alone, that the plaintiffs had not proved their case by a preponderance of the evidence.
Neely v. Jones, 234 Ark. 812, 813-14; 354 S.W.2d 726, 727 (1962)(emphasis added).
The colloquy shows that the trial court believed it had to find the plaintiffs had proved their case on their original proof alone unless the defendants could somehow rebut that proof, but this belief is contrary to our holding in Neely II. Far from weighing the evidence for the first time after the close of the defendants’ case, as required by Neely II, the trial court’s memorandum letter dated May 23, 2001-, shows that the Court of Appeals’ “finding” was given deference and that the trial court clearly weighed the defendants’ evidence against that opinion, instead of properly weighing it against the plaintiffs evidence:
. . . 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 contract and that appellant established, by clear and convincing evidence, that an agreement was reached.”
The question then is whether the defendants rebutted that proof sufficiently to conclude otherwise. The answer is no. Contrary to 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 ... [Emphasis added.]
While the judgment does not mention the Court of Appeals’ opinion, it is clear from the opinion letter that the trial court arrived at its decision by weighing the defendants’ evidence against the Court of Appeals’ “findings” rather than weighing it against the plaintiff s proof. First, the trial court required the defendants to “rebut” the plaintiffs proof, indicating that the trial court impermissibly shifted the burden of persuasion and gave the plaintiffs proof a presumption that had to be overcome by the defendants. There is no doubt that the trial court arrived at this presumption because it read the Court of Appeals’ “finding” as a presumption that the plaintiff had established the oral contract, rather than a prima facie case raising a question of fact as to whether or not an oral contract existed. Next, at no time in the opinion letter does the trial court claim to have weighed the defendants’ proof against the plaintiff s proof. Instead, the opinion letter shows that the comparisons made were between the defendants’ argument and “the Opinion,” and between the defendants’ contentions and “the Court of Appeals findings.”
The majority holds that, because the judgment specifically makes findings of fact without reference to the Court of Appeals’ opinion, the trial court did not abdicate its role as factfinder. Yet, the majority ignores the statements in the opinion letter that the trial court arrived at its decision by weighing the defendant’s evidence against the Court of Appeals’ opinion. In my view, the trial court abdicated its role as factfinder. Accordingly, I must respectfully dissent.