Full Opinion

Cite as 2026 Ark. App. 488 ARKANSAS COURT OF APPEALS DIVISION I No. CV-25-147 MUMTAZ MF Opinion Delivered October 21, 2026 APPELLANT APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT V. [NO. 06CV-24-35] SAMMIE LINDSEY AND SMART HONORABLE QUINCEY ROSS, GROCERY, LLC JUDGE APPELLEES AFFIRMED BRANDON J. HARRISON, Judge Ms. Mumtaz Mf appeals the Bradley County Circuit Court’s order that, after a bench trial, awarded some $49,000 in damages for fraudulently inducing Sammie Lindsey to enter a commercial lease. The court also denied her counterclaim for accelerated rent payments and repairs. It awarded Lindsey attorney’s fees and denied Mumtaz’s motion to reconsider. Here, Mumtaz argues that the judgment is undermined by legal errors. Though we agree in part, we conclude the award is adequately supported in law and was not a clearly erroneous determination on the facts of record. We therefore affirm. * In 2021, Lindsey and Smart Grocery, LLC sued Mumtaz in the Drew County Circuit Court for misrepresentations of fact and breach of an implied warranty of fitness for a particular purpose under Ark. Code Ann. § 4-2-315 (Repl. 2020). The case was transferred to Bradley County without objection in 2024. A bench trial was held in August 2024. Mumtaz represented herself at trial—and not particularly assertively or well. 1 That minimized the issues and arguments preserved for appeal, and this opinion should be read with that in mind. Mumtaz owned a commercial building in Hermitage, Arkansas that she had bought at a foreclosure sale in 2016. She said she had used the property as a grocery store and deli with all the required licenses from the Arkansas Department of Health. She closed the store in summer 2019 after an employee stole $7000 worth of lottery tickets. Hermitage’s mayor reached out to Mumtaz and explained the city needed a grocery store; she was not on board. So the mayor pivoted to Lindsey, a businessman, and asked if he would be interested in running a grocery store. Lindsey agreed, so the mayor connected the two. Enter Dianeth “Dean” Mullolah, Mumtaz’s husband, who spoke with Lindsey and ushered him around the property, the equipment, and so on. Dean explained that he and Mumtaz had been running a grocery store and deli on the premises and that everything was “good to go” as far as a grocer’s business was concerned. After seeing the space, hearing that it was up to code for licensing as a grocery store, and seeing the equipment run well enough, Lindsey signed on the dotted line. The lease agreement was for two years beginning 1 November 2019. It required Lindsey to pay $1200 a month for rent, use the space for retail purposes, maintain it in good condition, and pay property taxes during the lease term. 1 She retained counsel later to file a motion for reconsideration and timely notices of appeal. 2 Things went sour quickly. Soon after signing, Lindsey discovered that a lot of work had to be done to open as a viable business. The biggest issue was cooling. Though the air conditioners, coolers, and freezers worked to a degree, they could not keep things cool enough. When Lindsey complained to Dean that the coolers weren’t working properly, he replied, “Well, you may have done something wrong.” Lindsey paid for cleaners, had two HVAC experts look at the equipment, and hired a plumber to install a sink and fix the drain in the floor. Behind the cooling problem was a wiring problem. So Lindsey hired an electrician to upgrade old and faulty wiring. Despite this work, the store failed three health department inspections—in October 2020, November 2020, and January 2021. The HVAC did not pass. The deli did not pass. Indeed, Lindsey testified without objection that the health department had told Mumtaz and Dean they could never run a deli there. Sydney Owens, an HVAC technician Lindsey employed, couldn’t count how many times he had come out to the store. He fixed fans that weren’t working, unclogged the coils, drained the coils, added Freon, unstuck stuck contacts, cleaned the condensers, and changed capacitors. Nothing made a difference. The coolers would come on, but then stop, and wouldn’t start again. The coolers “just wasn’t really cooling,” he said. Some condenser units simply never got power. For many of them, Owens could never find the circuit breakers. Others had breakers that were labeled for a particular unit, but closing the circuit wouldn’t turn the designated unit on. Eventually Owens gave up. He said, “[I]f I see something that’s not working, . . . I’m not comfortable constantly to continue to do work and take people[’s] money if I’m not able to fix it.” A cold statement of fact from a warm-hearted professional. 3 Cooling is not a negotiable requirement for a grocery. Having concluded it would be too costly to bring the building up to code, Lindsey contacted Dean to ask about getting out of the lease. Twice. According to Lindsey, Dean first told him that if he would get current with rent, Dean would let him off the contract hook. Lindsey paid his back rent— $2,400—and assumed he was home free. Not so. Two months later, Dean asked why he wasn’t paying rent. Lindsey explained he thought he was out of the lease. Dean said, “No, you’re not out of the lease.” Dean had asked Mumtaz, and she vetoed the idea: “If he agreed to the lease, he has to fulfill the lease.” More time passed, more rent went unpaid, and things between the parties soured completely. By trial, Mumtaz and Dean were running the store again. But not as a grocery store. “Just hardware.” Dean testified that when they had shut the store down in summer 2019, they had active grocery and deli licenses and were operating the store as both. Department of health records would confirm that, he said. From then until Lindsey leased the property, Dean would come in two or three times a week and run the cooler for an hour, “two hours sometimes,” to make sure it was cooling enough. He said the HVAC system “need[s] maintenance all the time.” Sometimes the Freon is low, or the capacitor goes, or the breaker trips; those are “the problems we have that are commonplace.” When he and Mumtaz took over after the lease term, they had to spend a lot of money getting the (hardware) store ready. Why? The air conditioning “was not working in good condition at that time.” Dean didn’t know what all was done, but “a lot of air 4 condition people came and, you know, did it.” One of them told him a compressor had to be changed, and another was in bad condition. Mumtaz testified that she had a grocery license from the day she bought the building until she leased it to Lindsey. Inspectors came every six months. She had two or three total violations in that time. Most were “small things, like the soap or the towels or the refrigeration was not cooling enough.” When she had bought the building, the HVAC was not working. An HVAC technician told her the air conditioning had died. She spent $8,000 to resurrect it. How many times had she needed to fix it since? “Oh, many times.” “Many time[s],” she repeated. “Like, the air condition[ing] units all the time.” She had been to a safety course and knew what temperatures the coolers and freezers needed to stay under. Whenever the HVAC needed maintenance or repair she called a technician because “we need to do it to keep the product good.” The last day they were in business, the temperatures were where they were supposed to be. After Lindsey vacated the building, the store was not used for two years. In that time, Mumtaz said, rats gnawed through a lot of the electric wires. As a landlord, she had wanted two things from Lindsey. “I wanted to rent that building. . . . And I wanted them to maintain that building.” She agreed that she had wanted to incentivize a lease. Mumtaz admitted that she told Lindsey before he signed the lease that, though the building was now closed, she and Dean had recently been operating a grocery store, deli, and hardware store there. But she “didn’t say that [would] work. I said we did it. I said we did it.” Her word, she said, “is in that [lease] agreement. Okay? I go by the agreement.” And the lease 5 agreement said the property was leased as is, and that it was the lessee’s duty to maintain the building and cooling system. But Mumtaz was not the only one who had spoken to Lindsey. Dean had too. And Mumtaz acknowledged he was authorized to speak for her on some matters and had told Lindsey, “[W]e have a deli license. We have a grocery license. You’re good to go.” Sammie’s wife Catherine confirmed that Mumtaz was present when Dean had made those statements. Though Mumtaz denied Dean had authority to speak for her on all matters (“[h]e’s not authorized to say anything I did not say”), she could not say how Lindsey was supposed to tell the difference. And that apparently made a difference. After closing arguments, the circuit court addressed Mumtaz: THE COURT: . . . At this point in time, I will leave evidence open for the licenses. Okay? I want to see those three licenses you said you were carrying on this building. All right? I also want to see what infractions you carried on those for the deli, for the grocery side and any other licenses you had from the health department. . . . I’m only worried about this building in Hermitage. I don’t care about the one in Strong. MUMTAZ: Oh. Okay. I have them. (Emphasis added.) She did not have them. In a letter dated 1 August 2024, she attached tax bills and other records the court had invited her to submit. But no licenses or violation notices, past or present, were produced. Mumtaz represented that she had called the health department, and an employee told her the license was closed in 2019 and not active now, so they could not be printed. Lindsey’s own supplement includes this 13 August 2024 Freedom of Information Act request from his counsel: 6 I am interested in any and all records of the Arkansas Department of Health regarding any businesses or interaction with the [Department] regarding a commercial property situated at 112 W. 3rd St. in Hermitage, Arkansas. I hereby request a copy of all licenses, applications, inspections, notices, suspensions, revocations, or any and all other communications regarding commercial activity at that location. This would include any property operated by Mumtaz MF, Dollar Saver Market, Inc., Smart Grocery, LLC, Sammie Lindsey, or any other party. But the record does not indicate what, if anything, came in response. On November 7, about three months later, the circuit court ruled in Lindsey’s favor and awarded him $48,910.75 in damages and attorney’s fees in an amount to be determined (eventually $4,895 plus court costs). Because Lindsey was an experienced business owner and the court found he had failed to perform some due diligence before signing the lease, it assigned him some responsibility for the commercial mess. To adjust for Lindsey’s oversight, the court subtracted three months’ rent ($3600) from the award above. All Mumtaz’s counterclaims were denied. 2 November 22, through newly acquired attorneys, she moved for reconsideration or, alternatively, to set aside judgment. The circuit court expressly denied the motion December 10. She timely appealed the November 7 and December 10 orders. We ordered her to file a replacement for her principal brief because of deficiencies. Mf v. Lindsey, 2026 Ark. App. 214. Two judges now reach the merits; the third would dismiss for a recurring briefing deficiency. The judgment will be affirmed nonetheless, as now detailed. 2 Mumtaz does not raise any issue on appeal about the denial of her counterclaims, so we discuss them no further. 7 The circuit court grounded its award in both the fraudulent-inducement and implied-warranty-of-fitness theories Lindsey pleaded. Mumtaz argues broadly that the evidence fails to satisfy the elements of fraud and that there was no implied warranty because the transaction was a common-law lease. Finally, she argues the circuit court erred when it denied her motion to reconsider as untimely because Veterans Day, 11 November 2024, was excluded from the deadline calculation. Ark. R. Civ. P. 6(a). She is right about the deadline; but it doesn’t matter. The circuit court addressed the merits of her arguments for reconsideration in the same order: The judgment rendered by the Court was based on the testimony and evidence introduced during the regularly scheduled hearing on August 1, 2024. This evidence included detailed testimony from the Plaintiffs regarding the condition of the property, licensing challenges, financial disputes, and the alleged misrepresentations made by the Defendant. The Court found this evidence to be credible and sufficient to support the judgment. .... The Court’s findings were supported by the testimony of the Plaintiffs and the lack of evidence from the Defendant to counter critical claims. Specifically: The Plaintiffs presented evidence of significant property deficiencies, including non-compliance with licensing requirements, HVAC and plumbing issues, and mold and sanitation problems. The Plaintiffs’ testimony demonstrated that the Defendant failed to disclose the building’s non-compliance with health and safety standards. The Defendant failed to provide adequate documentation, including prior licenses for the grocery and deli operations, to rebut the Plaintiffs’ claims. * We review preserved arguments on questions of law de novo, giving no deference to the circuit court. Muruaga-Atkins v. Foster, 2026 Ark. App. 336, 740 S.W.3d 277. There 8 are not many of those, but one hits. Mumtaz argues the circuit court erred by relying on the implied warranty for a particular purpose under Ark. Code Ann. § 4-2-315 because the transaction here was a lease of real property, and that is a provision of Article 2 of the Uniform Commercial Code that applies to sales of goods. She’s right. The statute reads: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. Ark. Code Ann. § 4-2-315. A prerequisite for applying that provision is a “transaction in goods.” Ark. Code Ann. § 4-2-102 (Repl. 2020). That line is not always cleanly drawn. For example, is a contract to sell the components of an enormous electronic billboard and assemble them into a fixture on the realty a sale of goods or a contract for services? It depends. Church on the Rock - Texarkana v. Ace Signs of Ark., LLC, 2025 Ark. App. 35, 706 S.W.3d 734. But a key characteristic of “goods” under Article 2 is that they are movable at the time of identification for sale. Id. The cooling and HVAC systems at issue here were not. Not in the Article 2 sense, anyway, so it could not apply. 3 But the law is only half the appellate lift. Fraud liability can attach to representations made to induce a party to enter a contract, Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 3 Though the circuit court did not cite the statutory source for the implied warranty of fitness for a particular purpose, it seems to have relied on the Article 2 statute discussed above, which Lindsey cited in his complaint. Because we affirm the circuit court’s award under the fraudulent-inducement theory, we need not and do not today decide whether it could be affirmed under the similar UCC warranty for leases of goods—a nuanced issue because the lease mentions the cooling system, and in Article 2A, “goods” includes “things that are movable at the time of identification to the lease contract, or are fixtures.” Ark. Code Ann. § 4-2A-103(h) (Repl. 2020) (emphasis added). 9 255 S.W.3d 424 (2007), including a lease agreement. Davis v. Falls, 172 Ark. 314, 288 S.W. 723 (1926). To prove fraud, Lindsey had to show (1) Mumtaz made a false representation of material fact; (2) Mumtaz knew that the representation was false or that there was insufficient evidence on which to make it; (3) Mumtaz intended to induce Lindsey’s action or inaction in reliance on it; (4) Lindsey justifiably relied on the representation; and (5) Lindsey was damaged as a result. Muccio v. Hunt, 2016 Ark. 178, 490 S.W.3d 310. So we must also ask if the court’s findings of fact are clearly erroneous or clearly against the preponderance of the evidence. Waddell v. Ferguson Home Builders, LLC, 2017 Ark. App. 66, 513 S.W.3d 271. With the standard of review in mind, we affirm the circuit court’s finding that Mumtaz fraudulently induced Lindsey to enter the lease agreement with assurances that she and Dean had operated it under permit as a grocery and deli just months earlier and it could operate as one again. Mumtaz’s arguments on the fraud point did not extend beyond caveat lessee. She did not argue, for example, that any misrepresentations were of law, not fact, FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005); Adkins v. Hoskins, 176 Ark. 565, 3 S.W.2d 322 (1928), or were a projection of future events outside her control, Jenkins v. Mercy Hosp. Rogers, 2021 Ark. 211, 633 S.W.3d 758. As for the provisions in the lease, “[t]he law of fraudulent inducement is premised on the notion that a contract obtained by fraud cannot be used to relieve the party obtaining the contract of liability for that fraud.” Welsher v. Mercy Health Sys. of Nw. Ark., Inc., 2012 Ark. App. 394, at 2 (citing Allen v. Overturf, 234 Ark. 612, 353 S.W.2d 343 (1962)). 10 In one view this record could support, any misrepresentation Mumtaz or Dean made about future permit approval was icing on a completed fraud cake. The circuit court could have concluded that when they testified they had operated a grocery store and deli in this Hermitage building with permits from the department of health, they were just lying. There was no hard evidence otherwise. Why would Mumtaz tell the court she had the permits and violation paperwork but then—despite three months to collect it—produce zilch? Oops. The court specifically noted the absence of that paperwork when it denied rehearing: Mumtaz had “failed to provide adequate documentation, including prior licenses for the grocery and deli operations, to rebut the Plaintiffs’ claims.” Given Mumtaz’s own acknowledgement that adequate cooling is indispensable to a grocery store or deli, a representation that the building had recently been licensed as both would obviously be material to a leasing decision by a would-be grocer and deli man who would need those permits to open. * The bottom line is that the circuit court heard the testimony and assessed the witnesses’ credibility along with the other evidence and decided the case. We cannot say the circuit court erred in law or clearly erred in fact when it ultimately entered judgment for Lindsey on the fraud theory. Affirmed. BARRETT, J., agrees. BROWN, J., concurs. 11 WAYMOND M. BROWN, Judge, concurring. I agree with the majority that this case should be affirmed. However, I would affirm without reaching the merits of appellant’s arguments because appellant has failed to cure Arkansas Supreme Court Rule 4-2 deficiencies after being given the opportunity to do so. We initially ordered rebriefing due to numerous deficiencies in appellant’s brief. 1 We noted in that opinion that the failure to file a complying brief within the prescribed time may result in the judgment being affirmed or the appeal dismissed for noncompliance with the rule. 2 Although some of the noted deficiencies were corrected, others were not. For instance, the statement of the case was still only one page and failed to provide any material factual or procedural information. 3 The standard of review was still noted under the argument heading instead of being placed at the beginning of the discussion of each issue as required. 4 Additionally, the brief failed to follow the uniform citation form as required by Rule 4-2(a)(7). 5 Because appellate counsel failed to file a complying brief within the prescribed time, I would affirm for noncompliance with the rule. I respectfully concur. F. Mattison Thomas III and Ryan Wolf, for appellant. White Barton and Ben Barton, for appellees. 1 See Mf v. Lindsey, 2026 Ark. App. 214. 2 Id. 3 Ark. Sup. Ct. R. 4-2(a)(6) (2025). 4 Ark. Sup. Ct. R. 4-2(a)(7). 5 These were not the only deficiencies found in appellant’s brief.