Full Opinion

Cite as 2026 Ark. App. 531 ARKANSAS COURT OF APPEALS DIVISION III No. CV-25-445 SANDRA THOMAS Opinion Delivered November 4, 2026 APPELLANT APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, V. NORTHERN DISTRICT [NO. 42PCV-22-59] DESTIN AND JENNIFER CLARK APPELLEES HONORABLE DAVID H. MCCORMICK, JUDGE AFFIRMED BART F. VIRDEN, Judge Appellant Sandra Thomas appeals from the Logan County Circuit Court’s decision in favor of appellees, Destin and Jennifer Clark, in their action against her and her late husband, George Wayne Thomas, for breach of contract, declaratory judgment, and specific performance in connection with the sale of land in Magazine. 1 In the order on appeal, the trial court also denied Sandra’s counterclaim for breach of contract and declaratory judgment and awarded the Clarks $17,500 in attorney’s fees and costs. Sandra raises several points on appeal: (1) the parties’ rent-to-own contract was an executory contract rather than 1 The trial court dismissed the Clarks’ cause of action for abuse of process and denied their request for a preliminary injunction because they did not pursue that cause of action and remedy. a contract for deed, meaning the Clarks did not have equitable title; (2) the Clarks breached the contract by not maintaining the premises in a good, habitable condition required by the parties’ contract; (3) she did not waive the right to rescind the contract; (4) the Clarks also breached the contract by making a payment more than forty-five days late; (5) she did not breach the contract; and (6) the trial court erred in awarding attorney’s fees to the Clarks. We affirm. I. Bench-Trial Testimony At the January 23, 2025 trial, Destin testified that in 2015, he spoke with George about buying the Thomases’ acreage and was told by George that owner financing was a possibility.2 The parties entered into a contract under which the Clarks would pay $2,700 a month, but the Clarks defaulted and were told to move. When the Clarks could not find a place, they asked if they could enter an “agreement to start over again.” According to Destin, the Clarks gave the Thomases a truck and six or seven cows to “br[ing] the balance up to current” and again agreed to pay $2,700 a month. The Clarks, however, defaulted a second time. Neither of these contracts was introduced into evidence at trial. On March 3, 2020, the parties entered into a third contract titled “Rent To Own Contract.” Destin testified that it was “virtually identical” and “similar” to the earlier contracts, but this contract did not incorporate or reference the other two contracts. The 2020 contract provides the following in relevant part: 2 The Clarks alleged in their complaint that they paid $15,000 as a down payment toward a purchase price of $185,000 for the 111 acres. 2 The Owner/Seller agrees to accept and the Renter/Buyer agrees to pay a monthly payment of $1900.00 to be divided into two installments (if preferred by Renter/Buyer) of which $31.78 monthly fee is the rental portion. The current balance is $103,852.91. the payment for this amount will commence on March 15, 2020, and continue until paid in full. Payment must be paid in FULL by the 15th day of each month. As this is a rent-to-own contract, there is no grace period. Beginning on the 16th day of every month, if the monthly payment has not been paid in full, a $10.00 late fee will be assessed daily until paid up to date. .... Renter/Buyer shall have use of the property upon execution of this agreement and will retain usage as long as payments are up to date and paid in full. Title remains with the Owner/Seller until this contract has been satisfied. .... Renter/Buyer agrees to keep and maintain the premises and the improvements thereon in a clean and orderly condition, free of waste or destruction, and to make all necessary repairs thereon to keep the premises in a good and habitable condition at all times during this contract. The contract states that “[t]he parties agree that the Renter/Buyers may make advance payment(s) for part or all of the above indebtedness without penalty.” There is a section titled “Default,” which provides the following: Both parties recognize that time is [of] the essence of this agreement. If, at any time Renter/Buyer is 45 days late in the payment of any installment when due or to perform any of his obligations herein undertaken, without the consent of the Owner/Seller in WRITING, the Owner/Seller shall have the right to rescind this contract and therefore the right immediately to retake possession of said property without being guilty of any manner of trespass either at law or in equity, and any payments made by the Renter/Buyers shall be kept and retained by the Owner/Sellers as rent or liquidated damages for the use and possession of the described property by the Renter/Buyers, and this agreement shall become null and void. The failure of the Owner/Seller to exercise any option herein given at the time of any default shall not 3 operate to bar the Owner/Seller’s right to exercise such option upon any subsequent default of the Renter/Buyer. It is agreed that a letter, properly address[ed] to the Renter/Buyer at his last known address, mailed with sufficient postage thereon advising the Renter/Buyers of the exercise of any option by the Owner/Sellers, shall be sufficient notice of the exercise of any option by the Owner/Sellers. About six months after signing the 2020 contract, the Clarks’ payments were late. Destin testified that in 2021, the Thomases began urging them to resolve their outstanding debt, i.e., pay off what they owed for the 111 acres. Destin said that they tried to get traditional financing but that a burglary at his business and resulting financial problems led to his having bad credit. Destin testified that they soon found property they wanted to buy in Kentucky. He said that they made an offer to buy that property contingent on their sale of the 111 acres. Destin said that he called Sandra to tell her that they were going to pay off what they owe for the 111 acres. Destin testified that, when he told Sandra they were going to sell the 111 acres, she told him that he could not do that because they did not own the property and were just renters. The Clarks nevertheless listed the property for sale and received an offer on February 11, 2022, for $240,700. Destin testified that he was told by the title company that to move the process forward, he needed to get an exact payoff figure that was dated and signed by the Thomases. Destin texted Sandra asking for a thirty-day payoff amount “in writing and signed.” Sandra responded that she would request a payoff amount but that there was no way the Clarks could sell the property without express written permission from the Thomases. Destin testified that he never got the payoff amount from Sandra but that the prospective buyers’ application for financing was declined, so the deal was terminated. In 4 April 2022, Destin received another offer to buy the 111 acres for $250,000. Destin testified that Sandra asked him with regard to the payoff if he was still offering to buy the property for $85,000, but he said he was not. Destin said that the payoff amount was around $61,000, but Sandra responded that the payoff amount was $73,410 as of April 15. Destin accepted that figure but said that he needed it in writing. A text message shows that Sandra got frustrated and told Destin to deal with her attorney, Mark Johnson, and that the conversation was over. Destin said that he had used the $73,410 payoff amount that Sandra had texted to him on April 13, 2022, and he told Sandra that closing was to occur the week of June 6 and that he would get back with her with the exact date. On May 28, the Clarks sent Sandra cashier’s checks via FedEx for the $1,900 payment that had been due on April 15 plus $440 for the forty-four days that it was late. The payment arrived forty-six days after the due date. The FedEx envelope was marked “Refused.” At some point, although it is not clear when it occurred, Sandra’s grandson flew a drone over the property, and Sandra viewed the footage. Photographs admitted into evidence show that the Clarks had run PVC pipe from their trailer to discharge feces, urine, and other human waste onto the ground. Animals were eating around the cesspool, wading through it, and tracking it all over the property. There was also trash and dilapidated animal pens littering the property. The trailer the Clarks were living in was rotting and in a severe state of disrepair. According to Destin, George had told him in 2015 that he could run wastewater onto the ground. 5 Sandra presented the testimony of Cody Strozier, a licensed master plumber, that sewage cannot be dumped onto the ground in Arkansas and that it must first be treated. Strozier said there was no septic system on the property, nor were there any lateral lines. Strozier said that the sewage situation was a violation, would need remediation by the owner, and must be disclosed to any potential buyer. He conceded that there had been no permanent damage to the property. In rebuttal, the Clarks called James Bernard, also a master plumber, who testified that he did not see any raw sewage on the ground that day. Bernard said that grey water going straight onto the ground does not cause a hazardous situation or harm the land and that neither does black water until it has encountered blood. He said that if the health department saw the situation, it would likely issue the owner a citation and give the owner a period of time to install a septic tank or other containment system. Bernard, however, agreed that human waste is dangerous and must be disposed of in sewers or other systems. On May 31, 2022, Sandra sent the Clarks a “Notice to Quit,” stating that they must vacate the property because they had breached the contract by failing to make payments for April and May and that they had not maintained the premises in good, habitable condition at all times. The notice states that the Clarks were over forty-five days late with the April payment and that the Clarks certified that they understood this provision and had agreed to it. Sandra testified that the Clarks could make an advance payment but that it could not come from a third party. She further testified that what the Clarks sought to do was 6 essentially an assignment, which was not permitted by the contract. Sandra said that after signing the contract in March 2020, the Clarks were late with their payments from August on. She thought that the Clarks were in default by not paying by the fifteenth of each month but that she was bound to accept the payments as long as they were not more than forty-five days late. Sandra testified that she had never accepted a payment from the Clarks after the forty-five-day period. Sandra conceded that she had not hired Mark Johnson to represent her because he was too busy but that she had told the Clarks to give the money to Johnson, and he would handle the closing. Dawn Carter, regional manager for Pro Land Title, testified that for the last twenty- six years, she has worked as a licensed title agent and closer. She said that she is familiar with contracts for deed and that purchasers under a contract for deed solicit third-party purchasers who deposit money into an escrow account at a title company, then advance payment is made to the sellers under the contract for deed, and the deed is exchanged first to the original purchaser and then to the third-party purchaser. Carter described this as a fairly common transaction. She said that it is “absolutely” a requirement of the title company that a payoff amount be obtained in writing and signed by the seller. She stated that the exchange of deeds from seller to buyer to third-party purchaser is not an assignment. II. Trial Court’s Ruling In an amended ruling, the trial court found that the parties’ rent-to-own contract was a contract for deed and an equitable mortgage. The trial court found that equitable title had vested in the Clarks. The trial court found that the parties’ contract contained an advance- 7 payment section whereby the Clarks could pay all or part of the balance of the indebtedness; and that in February and April, the Clarks had sought a written, signed payoff amount so that closing could be set and they could make an advance payment of the balance owed and receive title to the property. The trial court found that, although Sandra gave the Clarks a payoff amount of $73,410, to which the Clarks agreed, Sandra did not provide it in writing and signed; therefore, this constituted a breach of contract and a breach of the covenant of good faith and fair dealing implicit in all contracts. The trial court noted that, although Sandra alleged that the Clarks breached the contract by failing to make timely payments, the contract provided for a $10-per-day late fee, which was paid in full and accepted by the Thomases. The trial court found that, to the extent that Sandra contended that the Clarks’ payment received on the forty-sixth day was a default under the contract, Sandra’s refusal to provide a signed, written payoff amount constituted a first breach, which excused the Clarks’ continued performance. The trial court also found that, to the extent Sandra argued that the Clarks breached the contract by failing to maintain the property, there was never a septic or containment system or plumbing on the property and that the Clarks’ discharge of waste began immediately after the first contract was signed by the parties in 2015. The trial court found that Sandra did not raise the issue for seven years and thus waived the alleged breach. The trial court also found that the Clarks’ attempt to complete the purchase of the Thomases’ 111 acres and then sell it to willing and able purchasers was not an assignment requiring Sandra’s agreement. The trial court declared that the Clarks had an equity interest in the property and had the right to make an early payoff. The trial court ordered Sandra to 8 provide the Clarks with a payoff amount within seven days; the Clarks were ordered to set closing within thirty days after receiving the payoff amount; and Sandra was told to participate in the closing by receiving the final payment and executing a deed. The trial court found that, as the prevailing parties in a breach-of-contract action, the Clarks were entitled to an award of attorney’s fees and costs in the amount of $17,500. III. Standard of Review In civil bench trials, the 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. Keith Capps Landscaping & Excavation, Inc. v. Van Horn Constr., Inc., 2014 Ark. App. 638, 448 S.W.3d 207. 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. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Roetzel v. Coleman, 2010 Ark. App. 206, 374 S.W.3d 166. IV. Discussion A. The Contract Sandra argues that the trial court erred in finding that the contract here was a contract for deed and that the Clarks held equitable title. She contends that this was an executory 9 contract because it had a forfeiture clause; made time of the essence; and provided that the property would be conveyed only if all of the conditions of the contract were satisfied. Sandra relies on White v. Page, 216 Ark. 632, 226 S.W.2d 973 (1950), for the proposition that Arkansas recognizes the potential validity of a forfeiture clause in an executory contract for the sale of land. In White, the Pages owned a house and lot mortgaged by a third party; they occupied the front apartment; and the back apartment was occupied by a tenant. The Pages entered into a contract with White for the sale of the property whereby White was to pay the Pages $1,000 at the signing of the contract, assume the mortgage to the third party, and pay the balance in monthly installments. The Pages would remain in possession of the property. White would not get a deed until all of the conditions of the contract were satisfied, including the payment of insurance and taxes. The contract contained a forfeiture clause. White agreed to continue to rent the front apartment to the Pages, and she collected rent from the Pages and the tenant in back. White, however, failed to pay insurance, taxes, and two payments on the mortgage. White stopped paying the Pages, so they sent her a registered letter saying that they were exercising the forfeiture clause. White made no more payments as per the letter; the Pages paid off the mortgage and sold the property to Owens. White sued the Pages for breach of contract by remaining in possession of the front apartment and by selling the property to Owens. White argued that her contract with the Pages was a bond for title, making her an equitable mortgagor of the premises and requiring foreclosure to terminate her rights. The supreme court said that the Page-White agreement was merely an executory contract with a forfeiture clause and that time being of 10 the essence was implied such that when White failed to pay the insurance, taxes, and mortgage payments, the Pages had a right to exercise the forfeiture clause. While equity will not ordinarily enforce forfeitures, still, where the payment of the price of the land is by express letter of the contract made a condition upon which the sale depends, courts of equity will not refuse to follow the terms of the contract; for to fail to do so would be to make a contract for the parties which they had not themselves made. White, 216 Ark. at 637, 226 S.W.2d at 975–76 (quoting Three States Lumber Co. v. Bowen, 95 Ark. 529, 531–32, 129 S.W. 799, 800 (1910)). Here, the March 2020 land contract contains a forfeiture clause and recites that time is of the essence. Forfeiture provisions are valid and enforceable in contracts for the sale of land. Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 33 (1964). Forfeiture provisions, however, may be waived by the acts and conduct of the parties. Id. It is a well-known principle that equity abhors a forfeiture and will seize upon slight circumstances that indicate a waiver in order to prevent forfeiture. Id. The right of forfeiture can be a harsh remedy producing great hardships; therefore, before a forfeiture is enforceable, equity requires strict compliance with the important terms of the contract even where there is an express provision for forfeiture. Id. Moreover, parties may enter into a valid contract relative to the sale of land whereby they may provide that time of payment shall be of the essence of the contract so that the failure to promptly pay will work a forfeiture. Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989 (1909). But the final effect of such an agreement will depend on the actual intention of the parties as evinced by their acts and conduct; and such a breach of the contract as would work 11 a forfeiture may be waived or acquiesced in. Id. The law will strictly enforce the agreement of the parties as they have made it; but in order to find out the scope and true effect of such agreement, it will not only look into the written contract, which is the evidence of their agreement, but it will also look into their acts and conduct in the carrying out of the agreement in order to fully determine their true intent. Id. Here, the trial court determined that the Clarks had an equity interest in the 111 acres and that they were entitled to make the advance payment they attempted to make before Sandra served them with a notice to quit. Specific performance is an equitable remedy that compels performance of a contract on the precise terms agreed on by the parties. Elder Constr. Co. v. Ivey Lane, LLC, 2010 Ark. App. 10, 370 S.W.3d 861. We review equity cases de novo on the record but will not reverse a finding by the trial court unless it is clearly erroneous. Id. Whether specific performance should be awarded in a particular case is a question of fact for the trial court. Id. On appeal, the question before us is whether the court’s decision to grant specific performance was clearly erroneous. Id. In reviewing the trial court’s findings of fact, we give due deference to the trial court’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id. The trial court ordered Sandra to provide a signed, written payoff amount and ruled that the payoff would be calculated from the principal amount of $73,410, accruing interest at 6 percent per annum from April 15, 2022. The Clarks were ordered to set a closing date within thirty days of receiving the payoff amount, and Sandra was ordered to participate by receiving the final payment and executing a deed to the Clarks. We cannot say that the trial 12 court clearly erred in ordering specific performance of the parties’ contract. In our de novo review, we conclude that the trial court’s conclusion that an equitable mortgage was created should be sustained given that equity abhors a forfeiture, Triplett, supra, and considering the significant amount of money the Clarks had already paid toward the purchase of the property since early 2015. Regarding the alleged breaches of the parties’ 2020 contract, both sides argued their theories of who breached the contract first, which provisions of the contract were breached, and the effect thereof. The trial court made findings on all of these theories and entered those findings in the amended ruling, as discussed above. Because we agree with the trial court’s ultimate conclusion that an equitable mortgage was created and that specific performance of the contract was an appropriate remedy, the alleged breaches are rendered moot. See, e.g., Clowers v. Lassiter, 363 Ark. 241, 213 S.W.3d 6 (2005) (finding it unnecessary to address other points because they had been rendered moot by the supreme court’s affirmance of the trial court’s dismissal of the suit against the Arkansas Crime Information Center on sovereign-immunity grounds). B. Attorney’s Fees A party may be awarded attorney’s fees in a breach-of-contract action pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999); BCR Contractors of Ark., LLC v. Hall, 2026 Ark. App. 241. Because the trial court is intimately acquainted with the record and the quality of the legal service rendered, this court usually recognizes the superior perspective of the trial court in assessing the applicable factors. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 13 (1990). Accordingly, an award of attorney’s fees will not be set aside absent an abuse of discretion by the trial court. Id. We will not find an abuse of discretion unless the trial court acted improvidently, thoughtlessly, or without due consideration. Gerber Prods. Co. v. CECO Concrete Constr., LLC, 2017 Ark. App. 568, 533 S.W.3d 139. Sandra argues that the trial court abused its discretion in awarding attorney’s fees and costs to the Clarks and that, when this court reverses the underlying order, it should reverse the award of attorney’s fees and costs. Priesmeyer v. Huggins, 2021 Ark. App. 410, 637 S.W.3d 274. Because this is Sandra’s only argument and given that we are affirming the trial court’s decision, we also affirm the award of attorney’s fees to the Clarks. Affirmed. KLAPPENBACH, C.J., and ABRAMSON, J., agree. Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Walters, Alison, Parker & Estell, by: Derick Allison, for appellant. Smith, Cohen & Horan, PLC, by: Matthew T. Horan and Stephen C. Smith, for appellee. 14