Fratesi v. Fogleman

32 S.W.3d 38, 72 Ark. App. 1, 2000 Ark. App. LEXIS 755
CourtCourt of Appeals of Arkansas
DecidedNovember 29, 2000
DocketCA 00-368
StatusPublished
Cited by1 cases

This text of 32 S.W.3d 38 (Fratesi v. Fogleman) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fratesi v. Fogleman, 32 S.W.3d 38, 72 Ark. App. 1, 2000 Ark. App. LEXIS 755 (Ark. Ct. App. 2000).

Opinion

JOHN B. ROBBINS, Chief Judge.

Appellant Joe Fratesi appeals a judgment of the Crittenden County Circuit Court in favor of appellee Julian B. Fogleman for the balance due on two promissory notes, plus interest and attorney’s fees. Appellant asserts two points of error on appeal: (1) that the trial court erred in denying appellant’s motion to dismiss, and (2) that the trial court erred in granting appellee’s motion in limine and denying appellant’s proposed jury instructions.

Appellee brought an action, as receiver, to recover unpaid monies due on two promissory notes executed by appellant and Charles Denton. The Crittenden County Probate Court had appointed Fogleman receiver for the estate of Rexford V. Wheeler, deceased, who was trustee of his and his sister’s property. Prior to his death, Mr. Wheeler, as trustee for himself and his sister Ms. Waldrep, executed two two-year leases as lessor, under which certain farm lands were leased to appellant and Charles Denton, as lessees, for calendar years 1985 and 1986. Appellant and Denton both signed each lease. At the same time these leases were executed, appellant and Denton also executed promissory notes in amounts of $15,150 and $12,450, which corresponded to the lease payments due under each of the two leases. The parties subsequently agreed to a reduction of the rent and a credit to these promissory notes of $6,900. The notes matured on October 1, 1986, becoming due and payable on that date in the reduced sum of $20,700.

While it was alleged that there was an informal agreement among the parties that appellant and Denton were each only responsible for rent pertaining to the respective portions of the land that each farmed, the promissory notes reflected that appellant and Denton were jointly and severally liable for their payment. Appellant paid what he understood was his portion of the rent, and appellee sought the remainder from Denton, who failed to pay the balance. Appellee then made demand on both appellant and Denton, seeking the remainder of the monies due. Denton subsequently filed bankruptcy and recovery was no longer sought from him.

The balance remaining on the promissory notes was $7,739.25 when suit was filed on October 20, 1988. Appellant moved for dismissal, asserting that the six-month statute of limitations applicable to the statutory landlord’s lien on crops, found in Ark. Code Ann. § 18-41-101 (1987), barred any recovery because of appellee’s failure to pursue his hen. Appellant argued that appellee’s failure to pursue his landlord’s lien impaired the collateral, impaired the right to recover against Denton, and thus released appellant from his joint liability on the notes. Appellant alleges that the motion was denied.

Prior to trial, appellee submitted a motion in limine seeking to preclude appellant from introducing evidence on certain matters, including that pertaining to a landlord’s lien. On the matter of a landlord’s lien, the court agreed with appellee and granted his motion. The case went on to trial, and appellant, appellant’s wife, appellee, and an officer of a bank with whom Mr. Denton conducted loan business testified. Mr. Denton did not testify, having died before trial. At the close of the trial, appellant proffered jury instructions regarding the impairment of collateral securing a negotiable instrument and the statutory landlord’s lien, to which appellee objected. The trial court agreed with appellee and they were not used. After deliberations, the jury returned a verdict against appellant in the amount of the unpaid balance, plus interest and attorney’s fees. This appeal followed. We affirm.

Denial of Motion to Dismiss

Appellant first argues on appeal that the trial court erred in denying his motion to dismiss. Ordinarily, a motion to dismiss is filed by the defendant prior to filing his answer to the complaint. See Ark. R. Civ. P. 12. Here, appellant filed his motion to dismiss a year after he filed his answer. In his motion, he contended that appellee failed to act on a statutory lien in a timely manner such that the statute of limitations barred any action on the debt. Appellant acknowledges that the trial court made no written findings and entered no order denying the motion to dismiss; he instead asserts that the trial court announced an oral denial. There is no abstract of a ruling on this motion, orally or in writing. “It is axiomatic that the record on appeal is limited to what is abstracted, and the burden is clearly placed on the appealing party to provide an abstract sufficient for appellate review.” Anderson v. Holliday, 65 Ark. App. 165, 171, 986 S.W.2d 116, 119 (1999). It is incumbent upon appellant to call his motion to the trial court’s attention and obtain a ruling. Flake v. Thompson, 249 Ark. 713, 460 S.W.2d 789 (1970) (failure to obtain ruling on motion to dismiss not considered on appeal). Objections and questions left unresolved are waived and may not be relied upon on appeal. See Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990); McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989). We do not consider this point on appeal because it is not preserved for our review.

Appellant alternatively argues that the trial court should have considered the pleadings available to it at the time and treated his motion to dismiss as one for summary judgment. Appellant is correct, for though it appears to be a 12(b)(6) motion, because facts outside the complaint are argued, the trial court could have treated it as a motion for summary judgment pursuant to Ark. R. Civ. P. 56. See Ark. R. Civ. P. 12(b). Were we to accept appellant’s alternative theory and consider that the motion to dismiss was treated by the trial court as a motion for summary judgment, it would not affect our decision because, first, as discussed above, the abstract does not reflect that the trial court ruled on it, and, second, we would be precluded from reviewing it on appeal because a denial of a motion for summary judgment is not appealable. See Amalgamated Clothing & Textile Workers Int’l Union v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994); Daniels v. Colonial Ins. Co., 314 Ark. 49, 857 S.W.2d 162 (1993).

Grant of Motion in Limine/Denial of Proffered fury Instructions

Appellant’s second allegation of error concerns the disallowing of evidence regarding impairment of the collateral, i.e., Denton’s crop, and failure to perfect a landlord’s lien in those crops, as delineated in Ark. Code Ann. § 4-3-606 (1987) entitled “Impairment of recourse or of collateral.”1 That statute read:

(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:

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Bluebook (online)
32 S.W.3d 38, 72 Ark. App. 1, 2000 Ark. App. LEXIS 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fratesi-v-fogleman-arkctapp-2000.