Beard v. Arnold

2015 Ark. App. 39

• Court: Court of Appeals of Arkansas
• Decided: January 28, 2015
• Docket: CV-14-321
• Status: Published

Opinion

Cite as 2015 Ark. App. 39

ARKANSAS COURT OF APPEALS DIVISION I No. CV-14-321

Opinion Delivered JANUARY 28, 2015

GARY BEARD APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. 60CV-12-2482] V. HONORABLE WENDELL GRIFFEN, JUDGE LAVERNE ARNOLD APPELLEE DISMISSED

DAVID M. GLOVER, Judge

We must dismiss this appeal for lack of jurisdiction. On November 16, 2001, Gary

Beard entered into a contract for the sale of a house owned by Theodore Loftin (now

deceased) and her daughter, Laverne Arnold, the appellee. The agreed purchase price was

$31,500, with split payments to be made in a designated fashion for certain periods of time;

one payment was to last eight years and the other, which was to be forwarded by Arnold to

the mortgagee, Regions Bank d/b/a Regions Mortgage,1 was to last fifteen years. The

parties also executed a warranty deed at that time, of which Beard took possession but was

not to file until completion of the terms of the real-estate contract.

1 It is unclear to us why Regions Bank d/b/a Regions Mortgage is not named as a necessary party to this action, but because we have concluded that we are without jurisdiction to hear this appeal for lack of a final, appealable order, we do nothing more than note its absence from the case below. Cite as 2015 Ark. App. 39

Beard lived in the house for approximately six years and then began renting it to

others. He subsequently recorded the deed he had obtained when the real-estate contract

was executed because he wanted to sell the property. In 2012, Beard became aware of a

federal tax lien on the property and stopped making payments. On May 22, 2012, Beard

filed a complaint for injunctive relief to require Arnold to satisfy the tax lien and convey the

property to him by warranty deed, or, in the alternative, for damages. Beard sought and

obtained an extension of time for service of the complaint, which was eventually served by

warning order filed December 17, 2012, pursuant to Rule 4(f) of the Arkansas Rules of Civil

Procedure.

Kimberly Miller, Arnold’s daughter (and Loftin’s granddaughter), who is not an

attorney, became aware of the complaint, and on January 17, 2013, filed an answer on behalf

of Arnold, denying the allegations and seeking damages from Beard. On that same date,

Miller also filed a “motion to dismiss” on behalf of Arnold, contending that she and Arnold

lived in Jefferson County and that Beard was aware of where they lived because he had sent

letters to them at that Jefferson County address. Attachments to the “motion” included

envelopes from Beard addressed to Arnold at a Jefferson County Princeton Pike address,

rental agreements with others executed by Beard, and correspondence with the bank.

On January 23, 2013, Beard filed a motion to strike the answer filed on behalf of

Arnold by Miller (contending that it was not signed by Arnold and Miller was not an

attorney), and in the alternative, an answer to counterclaim. On that same date, Beard also

filed a motion to strike the motion to dismiss filed by Miller, and in the alternative, a

2 Cite as 2015 Ark. App. 39

response to motion to dismiss. By February 22, 2013, Arnold had obtained counsel and,

through counsel, filed a response to Beard’s motion to strike and a response to Beard’s

response to her answer and motion to dismiss.

In an order entered on August 30, 2013, the trial court denied both motions to

dismiss, finding that jurisdiction and venue were proper and that Miller’s signature on behalf

of Arnold was legally sufficient because Miller had a “legally valid Power of Attorney giving

Kimberly Miller the right to advance claims of and to defend claims against Defendant

Laverne Arnold.” Following a bench trial, the trial court entered judgment against Beard,

finding that Arnold did not breach the contract but that Beard did by ceasing to make

payments in April 2012, without legal justification or excuse. The trial court awarded

damages and attorney’s fees to Arnold. The status of the title to the property, however, was

left unanswered. This appeal followed, with Beard contending that the trial court erred in:

1) denying Beard’s motion to strike the answer and counterclaim because the person who

signed was not an attorney, 2) awarding damages to Arnold because the liquidated-damages

clause limited damages to sums previously collected, and 3) awarding attorney’s fees to

Arnold because she is not the prevailing party. We dismiss the appeal.

Count I of Beard’s complaint sought the following relief, “[Arnold] should be

required to satisfy the federal tax lien and to convey the real property in question to [Beard]

by warranty deed, and providing clear and convincing evidence to [Beard] that they have

marketable title to said real property.” Arnold submitted proof that the tax lien had been

satisfied, rendering Beard’s first claim moot. However, Paragraph 7 of the December 13,

3 Cite as 2015 Ark. App. 39

2013 judgment from which Beard appeals, provides: “The Judgment of this Court does not

and will not preclude or prejudice [Arnold] from enforcing any rights remaining at law as to

the title of the property subject to this suit”; this leaves unsettled Beard’s request that the

property be conveyed to him by warranty deed, with clear and convincing evidence of

marketable title.

Consequently, because this order does not adjudicate the issue of who has marketable

title to the property, we have concluded that the December 13, 2013 judgment from which

this appeal is taken is not final and appealable. We therefore dismiss the appeal because we

are without jurisdiction to hear it.

Dismissed.

ABRAMSON and HARRISON , JJ., agree.

Steven R. Davis, for appellant.

Camille Edmison-Wilhelmi, for appellee.