America's Pre-Owned Selection, LLC v. Franchesica Williams

Cite as 2021 Ark. App. 67
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION II
2023.06.22 12:43:12 -05'00' No. CV-20-157
2023.001.20174

Opinion Delivered: February 10, 2021

AMERICA’S PRE-OWNED
SELECTION, LLC APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
TWELFTH DIVISION
V. [NO. 60CV-17-6932]

FRANCHESICA WILLIAMS HONORABLE ALICE S. GRAY,
APPELLEE JUDGE
AFFIRMED

MIKE MURPHY, Judge

The cause of action in this case stems from the purchase of two vehicles. Asserting

that the appellant, America’s Pre-Owned Selection, LLC (APOS), did not tender

conforming goods and engaged in deceptive trade practices, Franchesica Williams, the

appellee, attempted to rescind her contract to purchase both vehicles. When she returned

the first car and the dealership repossessed the second, she brought this case to recover her

down payment and sought punitive damages. The lower court ruled in Williams’s favor,

awarding her almost $5000 for her down payment and an additional charge, and $3500 in

punitive damages. APOS now appeals. We affirm.

On March 13, 2017, Williams purchased a 2011 Dodge Charger from APOS.

Testimony at trial established that Williams saw the car advertised on Facebook, drove to

the dealership in Little Rock from her home in Jonesboro, and asked to see the car. She was
told the car was in detail, but the salesperson offered to begin the purchase paperwork so

that once it was out, Williams could be on her way. He told her the Dodge had been

serviced and was in good condition. Without having first seen or driven the car, Williams

handed the salesperson her debit card. Williams testified that she tendered $4575 as a down

payment for the Charger. The car then came out of detail, Williams finished signing the

paperwork (the car was being sold as-is), but they would not let Williams inspect or test

drive the car. She asked for her money back but was told there was nothing they could do.

She left with the Charger, and it broke down just down the road from the dealership.

Williams called the dealership numerous times asking for help, but they kept hanging

up on her. She finally had to call her uncle, and he drove from Blytheville to tow her and

the Charger to Jonesboro. Williams then tried getting the Charger tagged, but there were

issues with the bill of sale, VIN, and car description. Williams towed the car back to APOS.

Williams testified that when she arrived at the dealership, they told her they could

just trade her car out with another, but they gave her no choice in the replacement vehicle.

They would not refund her money from the Charger. She stated they were hostile and said

she could either take what they gave her or walk back to Jonesboro. Williams testified that

she signed all the paperwork for the replacement car, a 2011 Hyundai Sonata, but after she

finished signing it, the salesperson “snatched” the paperwork out of her hand and wrote the

additional problems/disclaimers about the Sonata on the paperwork:

This vehicle is sold As-Is. The buyer is responsible for all repairs current and
whichever ones may arise in the future. The current issues include: bad brakes, needs
tire bad, and a loud clicking in steering column when the steering wheel is turned.
The dealer has no clue how insignificant or serious the steering problem may be.
The customer understands all of the current issues and accepts this vehicle As Is.

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Williams drove the Sonata home but never registered it and never made payments on it.

APOS repossessed the car about fourteen days later. Thereafter, Williams brought suit

against the dealership seeking revocation of the purchase contracts, asserting fraud and

misrepresentation, and requesting damages.

At trial, in addition to the foregoing testimony, Stephanie Gardner, the manager of

APOS, testified that she did not know what the salesperson told Williams the day she

purchased the Charger but that she sold the car to Williams “as is,” and Williams called after

she left the dealership saying the tire blew out and she could not afford the gas for the

Charger. She said that Williams wanted the Sonata because she wanted a newer-looking

car, and they did Williams a favor by letting her swap the vehicles. She said that Williams

drove the Charger back to the dealership, and after they resold it, they received no

complaints about it. Gardner testified that “as-is” was carefully explained to Williams

because they explain it to all of their customers, and Williams was never forced to buy a car

or forced to sign paperwork.

The court found that Williams met her burden of proof to revoke her acceptance of

the contracts and to prove both fraud and violation of the Arkansas Deceptive Trade

Practices Act. It awarded her a total of $8461.25; $4575 for her down payment on the

Charger, $386.25 for a charge on her debit card by the dealership that Williams testified she

did not authorize, and $3500 in punitive damages for fraud.

APOS appealed. On appeal, it argues that the findings for recission recession, fraud,

and violation of the Arkansas Deceptive Trade Practices Act are not supported by the

evidence and that damages were therefore improperly awarded.

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APOS appeals the judgment of damages from a breach-of-contract cause of action

entered after a bench trial. In appeals from civil bench trials, our standard of review on

appeal is not whether there is substantial evidence to support the findings of the court but

whether the court’s findings were clearly erroneous or clearly against the preponderance of

the evidence. Barnes v. Wagoner, 2019 Ark. App. 174, at 3, 573 S.W.3d 594, 595–96. 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 made. Id.

Where the issue is one of law, our review is de novo. Id.

The appellant frames its arguments in the following four points: that (1) “the lower

court erred in finding that appellee’s evidence was sufficient to prove that appellee was

forced to sign an ‘as-is’ contract”; (2) “the lower court erred in finding that there was

sufficient evidence to find that appellant committed fraud”; (3) “the lower court erred in its

failure to find that when the dodge charger was traded in for the hyundai sonata, then that

concluded any claim of appellee for damages concerning the dodge charger”; (4) “the lower

court erred in its finding that appellee presented sufficient evidence to prove that she

revoked her acceptance of the two cars, and, whether any such revocation was appropriate

according to the evidence”; (5) the lower court erred when it found the “appellant violated

the Arkansas Consumer Protection Act” and that the “Arkansas Consumer Protection Act

provides any damages in this situation”; and finally that (6) “the lower court erred in finding

that any damages at all were proven by appellee and by finding that appellee was entitled to

any damages whatsoever.”

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For the first three points, the appellant cites no legal authority to support its

arguments. This court may refuse to consider an argument when appellant fails to cite any

legal authority, and the failure to cite authority or make a convincing argument is sufficient

reason for affirmance. Moody v. Moody, 2017 Ark. App. 582, at 12, 533 S.W.3d 152, 160.

Further, insofar as the appellant argues that the trial court erred in failing to make specific

findings, our court presumes that in the absence of a showing to the contrary, that the trial

court acted properly and made the findings of fact necessary to support its judgment. Morris

v. Knopick, 2017 Ark. App. 225, at 9–10, 521 S.W.3d 495, 502.

APOS’s fourth argument is that Williams presented insufficient proof that she

revoked her acceptance. Because we affirmed the court’s findings that APOS committed

fraud, we likewise hold that it was correct of the lower court to find that rescission of the

contracts was appropriate. See, e.g., Roach v. Concord Boat Corp., 317 Ark. 474, 476, 880

S.W.2d 305, 306–07 (1994).

In point five, the appellant contends that it was error for the lower court to find that

it violated the Arkansas Deceptive Trade Practices Act, codified at Arkansas Code Annotated

sections 4-88-101 et seq. (Repl. 2011 & Supp. 2019), solely because the

only remedies established in this Code refer to expenses incurred by the Attorney
General in Arkansas Code Section 4-88-113(e) and in civil cases brought by the
Attorney General. There is no other provision concerning remedies sought by a
private person. It was error for the lower court to award damages based on the
Arkansas Deceptive Trade Practices Act.

This is the extent of the appellant’s conclusory argument, and it ignores that in Arkansas

Code Annotated section 4-88-113(f), a private remedy is established for “[a]ny person who

suffers actual damage or injury as a result of an offense or violation as defined in this chapter.”

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This person “has a cause of action to recover actual damages, if appropriate, and reasonable

attorney’s fees.” Id. The appellant did not make any argument regarding whether Williams

suffered “actual damage or injury” and instead simply—and incorrectly—stated that there

was no remedy under this statute for any party who is not the Attorney General. It is a well-

settled principle of appellate law that we will not make a party’s argument for it. Thigpen v.

City of El Dorado, 2020 Ark. App. 531, at 7. On this point, we also affirm.

Finally, in point six, APOS argues that “the lower court erred in finding that any

damages at all were proven by appellee and by finding that appellee was entitled to any

damages whatsoever.” However, Williams testified that she made a down payment of $4575

for the Charger, and her card was charged another $386.25 without her authorization. The

dealership had traded the Sonata for the Charger but then took possession of the Sonata

leaving Williams without any car at all; accordingly, a preponderance of the evidence

supports the award of $4961.25.

The remaining $3500 damages were awarded as punitive damages when the court

found that the appellant committed fraud. The purpose of punitive damages is deterrence

and punishment of wrongdoing. Thomas Auto Co. v. Craft, 297 Ark. 492, 498–99, 763

S.W.2d 651, 654–55 (1989). Punitive damages may accompany restitutionary awards when

there is proof of the elements of deceit as a basis of revocation of acceptance or extrajudicial

rescission. Id. APOS does not make any specific argument regarding the amount of the

damages. Here, because we affirmed the finding of fraud—a tort comprising an element of

deceit—we therefore hold that an award of punitive damages was not erroneous.

Affirmed.

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GLADWIN and BROWN, JJ., agree.

Everett O. Martindale, for appellant.

TS Branch Law Firm PLLC, by: Tabatha Branch, for appellee.

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