The opinion
Cite as 2022 Ark. App. 496
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-20-265
DONNELL BAUER AND MARILYN Opinion Delivered December 7, 2022
BAUER
APPELLANTS/CROSS-APPELLEES APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
[NO. 17CV-17-549]
V.
HONORABLE MICHAEL MEDLOCK,
JESSE LEE BEAMON, JR. AND MARY A. JUDGE
BEAMON, INDIVIDUALLY AND AS
TRUSTEES OF THE JESSE LEE
BEAMON, JR. AND MARY A. BEAMON
FAMILY TRUST DATED 13TH
OCTOBER 2015; AND THE JESSE LEE
BEAMON JR. AND MARY A. BEAMON
FAMILY TRUST DATED 13TH
OCTOBER 2015
APPELLEES/CROSS-APPELLANTS REMANDED
N. MARK KLAPPENBACH, Judge
In May 2016, the appellees, Jesse Lee Beamon and Mary A. Beamon, purchased a
house from the appellants, Donnell Bauer and Marilyn Bauer. After the sale, the Beamons
learned that poor soil conditions on an adjoining downhill lot threatened the stability of a
hillside on their new property. They also learned that an improperly installed air
conditioning condensate line, as well as apparent pet soiling of a bedroom carpet, caused a
significant mold problem in the house.
The Beamons hired contractors to remediate the mold in the summer of 2016. They
also hired a geotechnical engineering firm to investigate if the soil conditions on the hillside
could be repaired from their side of the property line. In September 2017, they learned that
the instability of the hillside could be repaired only from their adjoining neighbor’s downhill
lot. On the basis of that information, the Beamons’ counsel issued a rescission notice to the
Bauers on September 29, 2017.
On October 23, 2017, the Beamons filed a lawsuit in circuit court alleging that the
Bauers fraudulently failed to disclose the poor soil conditions on the lower lot as well as the
conditions in the house that caused the mold. The complaint made an equitable claim for
rescission and a legal claim for damages based on the alleged fraud. The Bauers filed an
answer that, among other things, demanded a jury trial.
Shortly before the scheduled jury trial, the Beamons filed a “Motion Requesting
Court to Strike Jury Trial Setting and Schedule Case for a Bench Trial.” The Beamons
asserted that
Count I seeks rescission as a remedy which would restore the parties to their pre-
closing positions[.] Count II is an action for the common law tort of fraud and deceit
and resulting damages. [The Beamons] understand the doctrine of election of remedies will
require [them] to make an election of remedies before the case can be submitted to the fact
finder. [Citations omitted.] To the extent required by the doctrine of election of
remedies, [the Beamons] have elected the remedies associated with their equitable claim for
rescission.
(Emphasis added.) The Beamons maintained, however, that “the remedies associated with
their equitable claim for rescission” included damages. Specifically, they contended that
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a grant of rescission resulting in the restoration of the parties to their pre-closing
positions will involve a transfer of title, return of consideration paid, reimbursement
for repairs to the subject property, taxes, insurance, and other maintenance expenses
together with a setoff . . . for a reasonable rental value of the property [while] in [the
Beamons’] possession.
Further, relying on Marx Real Estate Investments, LLC v. Coloso, 2011 Ark. App. 426, 384
S.W.3d 595, the Beamons alternatively claimed that even if rescission were not granted, they
would be entitled to recover their damages proved at trial.
The Bauers urged the circuit court to deny the Beamons’ motion for a bench trial.
They asserted that the Beamons’ “purported election of remedies is, at best, only a partial
election of remedies [to the extent they dropped a claim for punitive damages].” “In truth,”
the Bauers said, “the [Beamons] continue to both pursue an untimely and prejudicial claim
for rescission of the parties’ real estate contract, and simultaneously pursue a claim for legal
damages,” including some of the same expenses they sought in association with their
rescission claim. The Bauers also asserted, in any event, that the Beamons were not entitled
to rescission because they unreasonably delayed their request to rescind the real-estate
transaction. After a motion hearing that occurred on June 25, 2019, the circuit court granted
the Beamons’ motion for a bench trial.
The case was tried on September 9–11, 2019, and on October 29, 2019, the circuit
court issued a letter opinion in which it ruled that the Beamons waived rescission of the real
estate transaction because they did not serve the Bauers with the notice of rescission in a
reasonably diligent manner. The circuit court also ruled, however, that the Beamons were
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entitled to damages reimbursing them for the costs they incurred to remediate the mold as
well as the costs associated with their attempt to stabilize the hillside above the adjoining lot.
The Bauers now appeal the circuit court’s judgment, arguing that reversal is warranted
because the award of damages on the Beamons’ legal claims violated their constitutional
right to a jury trial; that the circuit court erred by awarding damages on a breach-of-contract
theory that was not alleged in the complaint; and by awarding attorney’s fees. The Beamons
have filed a cross-appeal in which they argue that the circuit court erred by denying their
request for rescission. Because a transcript of the June 25, 2019, hearing on the Beamons’
motion for a bench trial has been omitted from the electronic record filed in this appeal, we
must remand the case to supplement the record.
Recently, in Tilton v. Tilton, 2021 Ark. App. 100, we remanded to supplement the
record because a hearing relevant to two of the appellant’s arguments was omitted from the
electronic record that had been filed. Specifically, the appellant contended that the circuit
court improperly calculated the amount of temporary child support and alimony. The
transcript of the temporary hearing, however, had not been included in the electronic record.
We remanded to supplement the record with the temporary hearing, holding that we were
“unable to determine what evidence was presented or what arguments were made regarding
the proper calculation of temporary spousal and child support.” Id. at 4.
The omission of the transcript of the June 25 hearing may have similar ramifications
for this appeal. It was at this hearing that the circuit court likely heard argument (and perhaps
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admitted evidence) relevant to the Bauers’ claim that the circuit court’s decision to proceed
without a jury—and its ultimate award of damages—violated their right to a jury trial.
Accordingly, this matter is remanded to supplement the record with the transcript of
the June 25, 2019, motion hearing. The supplemental record is due in this court within
thirty days of the date of this opinion.
Remanded.
ABRAMSON, GLADWIN, HIXSON, MURPHY, and BROWN, JJ., agree.
Kenneth W. Cowan, PLC, by: Kenneth W. Cowan, for appellants/cross-appellees.
Daily & Woods, P.L.L.C., by: Jerry L. Canfield, for appellees/cross-appellants.
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